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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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