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20 Iowa L. Rev. 326 (1934-1935)
Freedom of Testation in English Law

handle is hein.journals/ilr20 and id is 348 raw text is: FREEDOM OF TESTATION IN ENGLISH LAW GEORGE W. KEETONt AND L. C. B. GowERt E ARLY i 1934, Parliament finally rejected a compromise of the type not uncommon in English law over the question of free- dom of testation, or, looking at the matter from another point of view, of unjust wills. In this last attempt, the Powers of Disinher- itance Bill, the main provision was that if a surviving spouse or child of the testator were left without adequate provision for his or her proper maintenance, education, or advancement in life, that person should have the right to appeal to the Court, which might, if it thought fit, order such provision to be made out of the net estate left by the testator. It will be perceived that the bill was open to several obvious objections. It declined to lay down any broad principle. It cast upon the Court the onus of deciding what was a proper case for intervention, would have spread uncertainty among testators, and further, would have encouraged speculative litigation. Moreover, it is always exceedingly difficult for the Court to discover the exact motives prompting a testator to make the dispositions he did, and as a matter of fact, such enquiries are not in general encouraged, especially as experience shows that they often result in nothing more than the washing of a good deal of family dirty linen in Court; whilst on the first point, it is worth while recalling that the cy-pres doctrine in relation to charitable trusts arising by will has always been kept within narrow limits, since, as Lord Eldon pointed out, a suggestion that a Court could interpose on any but the weightiest grounds to alter testamentary dispositions to charity would ultimately react unfavorably upon the charities themselves. This does not, however, prevent the Court from altering the appli- cation of charitable funds where, after a considerable interval, the funds have increased considerably, or existing schemes do not operate beneficially. Here again, however, the Court will only alter t Professor of Law, University of London; author of Elementary Principles of Jurisprudence (1930); The Law of Trusts (1934). f Assistant Lecturer in Law, University of London.

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