Earl Spencer, brother of the late Princess of Wales, will give Althorp to his eldest son rather than his eldest (female) child. Debra Burton considers potential challenges his children could make.
Earl Spencer, the brother of the late Princess Diana, recently hit the headlines when he indicated that he would be following the practice of male primogeniture, in which titles, as well as stately homes, are inherited by the eldest son rather than the eldest child. In Earl Spencer’s case, this means that his son, Louis, will inherit the ancestral home at Althorp, rather than his eldest daughter, Kitty.
In England and Wales, subject to the Inheritance Act, a person has testamentary freedom and can leave their estate to whoever they wish - there is no principle of forced heirship or requirement to split it “fairly”.
So, is there anything Lady Kitty (or her other disappointed siblings) could do to prevent her brother from inheriting, just because he happened to be born with a Y chromosome?
Is there a will?
Even though Earl Spencer may have made his views and wishes clear in the media, he still needs to make a valid will for those wishes to be followed. If there is no will, or it has been revoked, then his Northamptonshire estate will be distributed in accordance with the rules of intestacy.
This means that Earl Spencer’s wife will inherit: the personal chattels; a lump sum of £250,000; and half the remaining estate.
The other half of his estate is split equally between his seven children.
In that situation, Althorp may very well end up being owned by several members of the family – not an ideal scenario. Whereas the adult beneficiaries can vary the terms of the intestacy by deed, they will all have to agree - easier said than done. If any of the beneficiaries are still minors, then the court would have to approve any proposed variation.
Assuming Earl Spencer does have a will when he dies leaving everything to his eldest son, are there any claims that Lady Kitty could bring?
For a will to be valid, aside from complying with all the technical requirements, a person has to be of “sound mind” and have the legal and mental understanding to make a will (known as testamentary capacity).
It is worth noting that even if the terms of a will are “hurtful, ungrateful or unfair”, it can still be a valid will. Also, while wanting the eldest male to inherit may no longer be a politically correct sentiment – it is not a perverse or an insane delusion.
It can be difficult to challenge a will based on capacity, especially one drafted by a solicitor. There is a presumption that the will is valid. Lady Kitty will need to have strong evidence to rebut that presumption.
If the decision to leave the title and ancestral home to his eldest son was not his own, and Earl Spencer was coerced by a third party to such a level that they overpowered his true wishes, then the will may be challenged on the grounds of undue influence.
However, Earl Spencer has been consistent in his views and has been quoted as saying “the system of leaving great aristocratic estates only to male heirs works”. Despite it not being a popular viewpoint, Lady Kitty is likely to have great difficulty in showing the views were not her father’s. Although undue influence is a very common allegation to make, it is very difficult to prove in reality.
Inheritance act claim
Even if Lady Kitty accepts that the will is valid, if the will does not make reasonable financial provision for her, then she would be eligible to make a claim against her father’s estate.
As an adult child, she will need to show that she is in financial need, or that she had some sort of financial dependency upon her father at his death.
Earl Spencer has indicated that even though Viscount Althorp will inherit the estate, his other children will be looked after in their inheritance, so Lady Kitty is still likely to inherit a significant amount. Also, Lady Kitty is a successful model in her own right and so has her own income and assets. Therefore, if she is financially independent at the date of her father’s death, then she may not succeed with such a claim.
If Earl Spencer made promises or assurances to Lady Kitty during his lifetime about her inheriting Althorp, and his daughter relied on those promises to her disadvantage - perhaps working on the estate for years without proper pay and holidays, then Earl Spencer may be prevented (estopped) from reneging on that promise. He may not be free to give Althorp to Viscount Althorp upon his death – the court would look to see that any promises to Lady Kitty are honoured, and address the unfairness.
Disputes over inheritances and estate are not confined to the rich and famous. Given the complexity of family relationships, it is quite common that such issues can arise even with a relatively small estate.
It is important that anyone affected by these issues, or who has concerns, takes specialist advice at an early stage.
Debra Burton is a specialist contentious probate solicitor with Lime Solicitors.
I should imagine most of the chattels are owned in a trust - building and works of art. If I was in his place I would rather leave these intact & kept with property than distributed to the 4 corners of the world.
Althorp is fortunate in that it can tap into the finest minds & brains regarding estate planning. For the ordinary riff-raff a visit to a good London solicitor for consultation is £500/hr - and drafting a will is a few thousand at least. A wealth manager can in some cases be a better choice provided he is STEP qualified or can access STEP solicitor.
Wealth managers often take a more holistic view of estate planning than solicitors who always advise against doing anything dramatic.
Note that (and caution) that a solicitors first duty of care is not to the client - but yes youve guessed it to HMRC.