Practitioners need to avoid subjectivity when evaluating the merits of disputed will claims, says Ian Johnson
In Garland v Morris [2007] EWHC 2 (Ch), [2007] All ER (D) 11 (Jan), Michael Furness QC, a deputy High Court judge, rightly rejected a claim by an adult daughter for an award out of her late father’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975). While the decision cannot be faulted on its facts, the way in which it was ultimately expressed has left the author concerned that some judges might now be inclined towards a more subjective assessment of the manner in which a testator has disposed of his estate rather than the traditional objective approach.
An adult child who does not receive equal treatment with his siblings may attempt to rationalise his parent’s testamentary dispositions on a subjective basis. Was it favouritism on the part of the testator? Was it prejudice? Was it plain ignorance? In doing so, there is a desire to get into the mind of the testator and to make a moral judgment on his actions. While a layman
