Reflections from The College: Is it ever right to inherit?

By Richard A Roberts, BA TEP CTAPS.

The tragic death toll arising from the Covid19 pandemic has many consequences, not least in the area of inheritance.  Some years ago I gave a lecture here in Durham entitled ‘Is it ever right to inherit?’ in which I explored the various ways in which religions and nations had sought to govern what should happen to someone’s assets when they die. Jewish and Islamic traditions distinguished heavily in favour of male descendants over female, and even in this modern age there are still many of both faiths – and more – who adhere to those legal principles. Most European countries have some sort of forced heirship where it is compulsory to leave assets to certain family members. Here in England and Wales we have always had testamentary freedom – we can leave our assets to whoever we wish. 

An inheritance can often provoke drama; it certainly creates television drama, for where would ‘Downton Abbey’ or more recently ‘Flesh and Blood’ have been without the ‘who gets the estate?’ storyline.  And those stories are repeated in everyday life just as dramatically and with just as traumatic consequences – after 40 years as probate solicitor I should know. 

The fall out from the Covid19 crisis will come in many forms but it is inevitable that there will now be considerable discussion around the legal issues of inheritance and its formalities. It may surprise you to know that the current law governing how to make a will was passed in 1837 and has never been updated since. Its requirements for two witnesses present at the same time as the will is signed are intended to protect against fraud. However that often puts people off. 

Also until very recently the rules governing how to obtain access (or probate) to someone’s assets after death had not been substantially overhauled since late Victorian times. No wonder less than 35% of the population have a valid and relevant will, and no wonder people find the post bereavement paperwork a nightmare.

Making a will is never easy. It is natural for parents to want to take care of their children but inevitably parents have a favourite child – the eldest, the youngest, it matters not which, what matters is the very act of favouritism. Equally children, especially those left caught in the middle of caring for aged parents and difficult teenage children feel an automatic sense of entitlement to their parents’ assets. 

In recent years we have seen many more multi-generational family units living under the same roof with all the issues that brings when the senior generation dies. I still see inheritance discrimination where a child is gay or lesbian, where a child has chosen to marry outside a particular ethnic or religious group, or in one case just because ‘he married beneath himself’. Often parents are caught in a cleft stick of indecision and end up not making reasoned wills and then the family fall out is almost guaranteed. For AWOC’s (adults without children) there are even more decisions – nephews and nieces, godchildren, the gardener, friends or charities. 

Is it any wonder that nearly 70% of the population don’t make a will?

The current rules on who inherits, if there is no will, take little or no account of modern society with its fractured or blended families, or indeed assets held over many jurisdictions and in many different ways e.g. Bitcoins, pictures and music held in the Cloud.  

Whether there is a will or not, a family who fractures over an inheritance dispute will rarely, if ever, repair the damage caused by the rift. Covid19 is already subjecting so many people to unprecedented levels of stress and emotion, and arguments over inheritances will just add even greater strain on the mental health of those affected.

There is no easy answer: forced heirship cannot accommodate the numerous aspects of modern relationships, and certainly returning to any system of primogeniture or favouring beneficiaries by gender would be unacceptable. Freedom to do as one wishes – even if it means disinheriting the obvious family members in favour of others or charity – is acceptable if the means are entirely free from possible abuse or fraud.  That is where the legal debate will now focus for financial abuse of the vulnerable (and indeed not so vulnerable) will become even more prevalent in the economic recession which will now ensue. 

At the end of my lecture to the law students in Durham I posed the question ‘Was it ever right to inherit anything?’ and that an option would be for all assets still held at death to be forfeit to the Government to reduce the National Debt. Now that’s a provocative and sobering thought. 

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