What Kaur v Singh tells us about wills and modern values

Although widely reported in the media, the Kaur decision is not a particularly surprising or notable one. Indeed, it is perhaps what many practitioners would consider a classic or “textbook” Inheritance Act claim.

A devoted and long-suffering wife and mother is disinherited by her own husband who wished to pass on his estate exclusively to his male heirs, and is then awarded half of the estate by a judge who adopts the divorce standard.

The judgment was handed down on 14 February this year – Valentine’s Day – which is perhaps ironic given the rather unromantic gesture of the deceased husband, Karnail Singh, who excluded his wife, Harbans Kaur.

However textbook the decision may seem, the case’s background and the decision reveal an interesting tension between testamentary freedom and modern-day ethics.

The background

Mr Singh and Mrs Kaur were married in 1955. They had seven children together, with six – two boys and four girls – having survived the deceased and all adults.

The couple had a family clothing business but Mrs Kaur had no stake and she drew no salary.

It appears from the judgment that the deceased controlled the family and household finances and that Mrs Kaur, who, with reference to the leading decision in White v White [2000] UKHL 54, was said to have made a “full and equal contribution to the marriage”, was therefore financially “dependent” on her husband.

The term “dependent” is lifted straight from the judgment because it sits rather uncomfortably to refer to someone who made such a substantial contribution to a marriage as being dependent on their husband.

In our modern world it implies, whether deliberately or otherwise, elements of control and misogyny.

Those implications, and the acknowledgment that Mrs Kaur’s contribution to the marriage and family was vital, are perhaps strengthened by Mr Justice Peel’s reference not to Mr Singh’s wealth but, instead, to the “family wealth” which he notes was “built up during the marriage” and which was valued at £1.2m.

The headline grabber was, of course, the fact that Mr Singh had sought to leave the family wealth in its entirety to his two sons to the exclusion of Ms Kaur and his four daughters.

The claim itself was, notably, brought in the Family Division.

Claims under the Inheritance Act can be brought either in the Business and Property Courts (within the Property, Trusts and Probate List) or in the Family Division.

There has been a long-held perception among contentious private client practitioners that the Family Division may be the preferred forum to hear spousal claims for financial provision and that one is likely to receive a more generous award there.

This relatively uncontroversial decision, which awarded Mrs Kaur precisely half of the estate, will do little to fan the flames of speculation further.

Applying the law

Mr Justice Peel briefly reviewed the relevant law, citing the even more widely reported Supreme Court decision of Ilott v Mitson [2017] UKSC 17 and what is often termed as the “divorce cross check” set out in section 3(2) of the Inheritance Act.

The “cross check” confirms that, when considering an application for provision by a spouse or civil partner, the court will “have regard to the provision which the application might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a divorce order” in addition to the other section 3 factors.

In applying the law to Mrs Kaur’s case, the judge considered this to be “the clearest possible case entitling [him] to conclude that reasonable financial provision had not been made for [Mrs Kaur]”.

In doing so, he held that the “divorce cross check points unerringly towards an equal division of the assets”.

The claim was undefended.

Points for practitioners

In relation to the legal points of note, the following can be taken from the judgment:

Rules to follow

While Inheritance Act claims can be brought in both the Civil and Family courts, each is governed by its own procedural rules and practice directions.

If brought in the latter, parties must comply with Practice Direction 27A of the Family Procedure Rules 2010 when preparing bundles and preliminary documents.

Clearly frustrated by prior non-compliance, Mr Justice Peel felt that this claim, despite being undefended, “demonstrated […] precisely why it is so helpful, indeed essential, for the relevant rules, practice directions and efficiency statements to be scrupulously adhered to”.

Acting proportionately

Such claims are brought under Part 8 which, as the White Book points out, is “for the determination of relevant claims without elaborate pleadings”.

As such, Mr Justice Peel felt that, despite the relative uncertainty over some of the estate figures, it was proportionate for the case to be determined “summarily” particularly in the light of Mrs Kaur’s elderly and impoverished condition.

Summary judgement

In the light of the above, it was not necessary to consider Mrs Kaur’s summary judgment application. Indeed, Mr Justice Peel held that the test for summary judgment, being the need to show that the defendants have “no real prospect of successfully defending the claim” was higher than “simply determining the claim by way of an overall evaluation of the case in an abbreviated fashion”.

Tax implications

Practitioners should always have an eye on the tax implications of any potential claim, award or settlement given the “reading back” provisions of section 19.

In this case, and assuming an award to Mrs Kaur of £600,000, there was a potential inheritance tax saving of some £240,000 given the spousal exemption. The need in this case to bring proceedings seemingly arose from the lack of engagement from one of the defendant sons.

Had all parties engaged then, as Mr Singh had died in August 2021, there may have been an opportunity to enter into a deed of variation instead to make full use of both the spousal exemption, residence nil rate band and any other available reliefs sparing the need for court proceedings.

Why is this case so notable?

As to the tabloid and press reports, why all the interest?

Aside from perhaps some very good PR teams, in my mind it is because, in 2023, society now justifiably views any situation in which a husband can entirely disinherit a wife who made a “full and equal contribution to the marriage” as so objectionable that it warrants reporting.

That is more so in a case where the intention of the deceased was to leave the estate to the “male line”.

Tellingly, even the comments sections of several well-known news sites came out in support of Mrs Singh.

This is perhaps in stark contrast to previous decisions, particularly those where sums had been left to charity, where many opined that such decisions were an affront to the testamentary freedom which we enjoy in England and Wales.

What this decision is, therefore, is more a statement or acknowledgment that, while we do enjoy freedom of testamentary disposition, that must be balanced against a society which now quite rightly stands against injustice and inequality.