Wills and testaments – whose rights are being wronged?

Rights are wronged. But whose?

Rights are wronged. But whose?

Feel duty bound to begin this blog on wills and testaments with a disclaimer: I have no nifty solution to offer at the end, I don’t even have a firm opinion of whose right I think is being wronged, so will totally understand if you feel inclined to bail right about now.

But for those brave souls prepared to stick with me for the sake of the ride, it’s like this: I’ve been reading up on the ins and outs of entails (also called fee tails) which are essentially old legally-binding documents designed to enable a family’s estate to be passed from one generation to another through the main line of succession – generally the male – intact.

 

 

While an entail can vary in form, most decree that the first-born son (or failing an immediate legitimate (i.e. within wedlock) heir, the next male in line of succession – think House of Windsor) is to inherit the estate: locks, stocks and barrels. He is then tasked with maintaining the estate’s ability to generate enough income to preserve and protect the land, real estate and contents within the entail in order to pass it on to the next generation. He is, in other words, merely the keeper of the estate. He can have the yummy cake, but he can’t eat it.

Were it not for entails, most stately homes would have bitten the dust long ago; the proceeds carved up and parcelled out in increasingly smaller packages between siblings and their subsequent offspring and descendants. Much of the larger family-owned land areas would have been sold off – and probably snapped up and exploited by housing planners – and a good deal of cultural heritage lost for ever. Both outcomes are, of course, pretty compelling arguments for retaining an entail, and ones that holders to titles have obviously been deploying for years.

The glaring downside is the plight of the other siblings who, having grown up on the estate and may still be living on the estate, are suddenly thrown to the mercy of first-born benevolence on the death of their father. Anything they do receive, however, is theirs to do with as they please. If said son and heir is disinclined to acknowledge his siblings’ moral rights as children on an equal footing, they may inherit nothing monetary or material and in the event of serious badwill may even lose their homes.

Which is why most countries dissolved entails many years ago or, as in Sweden’s case, require an entail extension to be granted by the State – one generation at a time.

To modern ears, this all sounds pretty reasonable. Why should one sibling gain the lot and, perhaps even more outrageous this day and age, why gender specific? Or is it actually perfectly reasonable?

Because which right weighs heaviest? The right of the receivers to a fair share of an estate – however big or small – or the right of the deceased to decide over his or her own property?

This is not a question from centuries ago. These discussions are still taking place on a daily basis in our modern society. Sweden, for example, chooses to regulate part of the inheritance through a statuary share of inheritance law that stipulates each child, regardless of legitimacy, must inherit an equal share of 50% of the inheritance. Other countries, such as Britain, leave the field more open which explains why bitter stories crop up in the press about children being left out in the cold while a worthy rescue shelter for retired donkeys picks up the bulk.

But who is to say which system is better? How dare the Swedish State take away my right to disperse of my accumulated estate – representing a lifetime of MY hard work – as I wish? Or how dare the system permit parents to leave their offspring, some of whom having perhaps sacrificed large parts of their own lives to serve as their carers, penniless or even homeless? These examples, of course, represent opposite ends of the spectrum, but there are 500 shades of everything in between. And it’s happening in our own societies every day.

So let’s turn it around. Which wrong weighs heaviest? To be treated grossly unfairly in comparison to a sibling, or have your freedom to bequeath your estate as you wish curtailed by laws?

And while the jury is out, wills are contested. Family feuds get dragged through public courts. Parents are posthumously declared of unsound mind. Sibling vs. sibling. Family vs. charity. It’s painful and messy. And the only guarantee even then is the truth of the age-old maxim: Where there’s a will, there’s a (pricey) lawyer.

My inclination is to split everything fairly. Unless, of course, one child is truly struggling and the others are financially much better off. In which case…hmmm.

Anyone?

PS: If you speak Swedish and find the whole issue of entails intriguing, I highly recommend Jorden De Ärvde by Björn af Kleen.

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