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Sexuality and Succession Law: Beyond Formal Equality

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Abstract

This article endeavours to open up a dialogue between succession law and the field of gender, sexuality and the law. It presents a detailed analysis of five cases concerning inheritance disputes relating to lesbians or gay men. The sexuality of the parties in the cases is ‘doctrinally irrelevant’ but the analysis demonstrates the significance of sexuality in the resolution of the legal disputes. In doing so it identifies how legal discourse remains a critical site for the production of societal norms and in particular how lesbian and gay perspectives reveal the gendered assumptions underlying a number of key succession law doctrines. It emphasises the importance of taking difference seriously and the limits to formal legal equality.

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Notes

  1. Terminology raises complex issues, but ‘lesbians and gays’ is used here as it acknowledges gender differences and because the lives spoken of here are from a time and place where this terminology is widely used and, notwithstanding the insights of queer theory, still the key identity markers of choice.

  2. In England, will drafting was a key service provided by the Terence Higgins Trust Legal Services Group.

  3. The concept of a ‘political will’ draws on Watney’s reference to ‘political funerals’ (1994, p. 250).

  4. For example in a recently published three-volume collection of essays on sexuality and law (Robson 2011) not a single contribution explicitly addresses inheritance or any issues relating to death.

  5. See also Kerridge, ‘To avoid the need for repetition, all references in this chapter to husbands, to wives, or to spouses, include civil partners’ (2009, p. 133, fn 4).

  6. See also Law Commission (2009, p. 3) for the same approach, but note that Haskey refers to ‘spouse (or civil partner)’ (Haskey 2010, p. 964).

  7. However, curiously, there was no discussion of the specificity of this group’s views.

  8. This expression refers to those where the beneficiaries are strangers by either blood or marriage: Sherman (1981).

  9. (1846) 1 Rob Eccl. 442, at p. 456 per Sir Herbert Fust (emphasis added). See Wingrove v Wingrove (1885) 11 PD 81. This authority is applied to ‘shocking’ male companionship.

  10. See Frank (2010) at pp. 105–113. While the history of woman and wills is predominately one that reflects the explicitly patriarchal basis of law, medieval historians have used wills to challenge assumptions about the marginal status of women, by arguing that they provide evidence of companionate marriages existing much earlier than assumed: Hodges (2000) and Arkell et al. (2000).

  11. 15 N.Y.2d 825, 205 N.E.2d 864, 257 N.Y.S.2d 941 (1965). For background details see Sherman (1981, pp. 239–246).

  12. [2005] EWHC 3038 (Ch).

  13. Kerridge suggests that ‘judges in succession cases tend not to enthusiastic about accepting allegations of misbehaviour: holding that a will has been mislaid by the testator is a way of avoiding unpleasantness’ (2009, para 7–25). However the finding resulted in the brother’s costs being paid out of the estate: Rowe v Clarke (costs) [2007] WTLR 373.

  14. Para [60]. See also para [16].

  15. For a case with similar facts to Kaufmann but with a different outcome see, for example, the Israeli case of Rat v Braun Tel Aviv District Court (12 January 1992). Thanks to Hedi Viterbo for translating. See Stefan Braun, 2007 (dir. Itamar Alcalay) a documentary about the case.

  16. In support of this argument it is noteworthy that the revocation point was not Rowe’s only avenue of redress: he would have had a strong argument under the 1975 Act.

  17. Victim (1961) dir. Basil Dearden.

  18. For a discussion of this see Frank (2010, pp. 83–89).

  19. As he points out, in the USA, as in the UK, such a marriage is, however, not necessarily void.

  20. The key authority is Blathwayt v Lord Cawley and others (1976) AC 397; [1975] 3 All ER 625, HL. An opportunity for an extension of the effect of human rights provisions was considered but rejected in debates that led to the enactment of the Equality Act 2010.

  21. Marckx v Belgium (1979) 31 Eur Ct HR (ser A) 1, 2 EHRR 330.

  22. Context is all here: Grattan and Conway (2005) demonstrate how testamentary conditions sustain sectarian inequalities in land ownership in Northern Ireland; Herman (2011) how they enable a minority group to sustain their identity and survive.

  23. See Frank (2010) at pp. 105–113. While the history of woman and wills is predominately one that reflects the explicitly patriarchal basis of law, medieval historians have used wills to challenge assumptions about the marginal status of women, by arguing that they provide evidence of companionate marriages existing much earlier than assumed: Hodges (2000) and Goose and Evans (2000).

  24. Rolls. Nov. 18-21 [1816]; (1816) 2 Mer 26: 850–851.

  25. (1860) 27 Beav 615; 29 LJ Ch 312. Halsbury’s Laws of England (2010, para 141, fn 3) cites this case as an example of a clause held not to be uncertain, but it is not clear whether or not this was because the court held that she complied with the condition.

  26. [1953] 1 All ER 357.

  27. Ibid at 359.

  28. Ibid at 359. The clause in the will refers to ‘Grace Liesching (or by whatever name she may from time to time be known’ (copy of will with author). As the will is easily accessible it is not clear why the judgment protects her anonymity.

  29. Ibid at 360 (emphasis added).

  30. And—as above—possible distaste for fraternal ‘greed’. In this respect it is perhaps worth noting that the judge was from a German family (see Sainty 1993), that is from a jurisdiction in which forced heirship of children is upheld by law.

  31. For a rare reference to domestic violence see C Bryant MP, HC 12 Oct 2004, at Col 226.

  32. See the novel by Monette (1990) for one of the first uses of this expression.

  33. See C Hendry MP’s acknowledgment: HC 12 Oct 2004 Col 233.

  34. For example B Gould of Potternewtown’s description of a partner being refused access to a funeral and suffering ‘the ultimate humiliation’ of ‘being evicted from their joint home with no keepsakes and only his memories of their happy years together.’ HL Deb 22 April 2004 vol 660 cc387-433 at 493.

  35. As Glennon (2005) notes they were little more than a ‘tactic to disturb the passage of the legislation’. But it raised pertinent issues; see Auchmuty (2009).

  36. Ibid B Gould of Potternewtown.

  37. Lord Ali HL Deb 22 April 2004 Vol 660 Col 407.

  38. A Bercow at Col 753 HC.

  39. C Bryant 12 Oct 2004 Col 226.

  40. J Smith HC 12 Oct 2004 Col 175.

  41. See, for example, Charles Hendry MP description of how the parents of a man’s deceased partner ‘sold the flat in which the couple had lived’ HC 12 Oct 2004 Col 233.

  42. HL Deb 22 April 2004 Vol 660 Col 407.

  43. For example, where a cohabiting couple own a property as joint tenants, and the asset transfers automatically outside of a will, inheritance tax is only paid on half the value of the property. Consequently where the home is the only major asset, under current inheritance tax rates the CPA only provides additional protection to those whose homes are worth approximately £700,000. In the context of tenancies the House of Lords had largely addressed the issue in Ghaidan v Godin-Mendoza [2004] UKHL 30.

  44. [2008] EWHC 1587 (Ch). On appeal the case only concerned the claim by Watson’s goddaughter—which is not the focus here: Baynes v Hedger [2009] EWCA Civ 374.

  45. The Independent ‘Ken Russell’s former wife contests will of mother’s lesbian lover’, 26 June 2008; The Guardian, ‘Actor loses court battle over £2.3 m estate of mother’s lesbian lover’, 14 July 2008.

  46. For other recent examples see: ‘Muriel Spark leaves millions to woman friend rather than son’: Evening Standard, 14 April 2007; ‘Why did this decadent peer leave his millions to his manservant?’: Daily Mail, 20.06.2011; ‘Gay-lover-of-dead-flamboyant-TV-presenter-loses-legal-battle-over-property-portfolio’: Daily Telegraph, 10 August 2011.

  47. In the US case In re Anonymous 75 Misc. 2d 133, 347 N.Y.S.2d 263 (Sur. Ct. 1973) a gay beneficiary under his partner’s will had the following dilemma: risk self-incrimination for crimes of homosexuality (then in existence) or lose his entitlement; see Sherman (1981) at p. 233. A potential will dispute resulting in an involuntary ‘outing’ is also key to the plot in a novel by Benetar 1981 (2009 at 174). The issue of outing is also an issue for obituary writers, see: Marzol (2006).

  48. Inheritance (Provision for Family and Dependants) Act 1975s 1(1B) (as inserted by the CPA 2004). The same test is used in other statutes in the context of social welfare and the argument made here has relevance in these contexts too.

  49. Baynes at para 120.

  50. Ibid para 121.

  51. Para 150.

  52. Ibid para 125.

  53. HL Deb 22 April 2004 Vol 660 at Col 414. See also http://www.stonewall.org.uk/at-work/ for current research about the experiences of lesbians and gays in the workplace.

  54. Southern Housing Group Ltd v Nutting [2004] EWHC 2982 (Ch). See Moran (2005) for a critical discussion of the relevant case law.

  55. [2009] EWHC 3340 (Ch).

  56. ‘Peter Ikin married French boyfriend weeks before death’ The Daily Telegraph, 11 December 2008; ‘Gay lover of the late Peter Ikin quizzed over secret will’, The Daily Telegraph, 17 December 2009; ‘Gay Frenchman accused of killing friend of Elton John freed on bail’ Reporter, Daily Mirror, 31 March 2011.

  57. For the classical origins and comparative analysis of this rule see Schoeman-Malan (2007).

  58. Wills Act 1837s 18B (as inserted by the Civil Partnership Act 2004s 71).

  59. [2009] EWHC 3340 (Ch) at para 12.

  60. Contrast Arnold J’s reliance on Williams on Wills and the Law Reform Committee (1980) para 3.16, 3.18 with Kerridge (2009) and Miller (1996) and the Law Reform Committee (1980) at para 3.17.

  61. The key point raised in commentaries, see Catchpole (2010).

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Acknowledgments

This article draws on a paper presented at the Experiencing the Law 2010 conference, 3rd December 2010, organised by SOLON, the Centre for Contemporary British History at King’s College London, and the Institute of Advanced Legal Studies. I would like to thank the participants for their comments and also those of Helen Reece and the anonymous referees. This article forms part of a larger project, which is in part supported by the Socio-Legal Studies Association.

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    Daniel Monk

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Monk, D. Sexuality and Succession Law: Beyond Formal Equality. Fem Leg Stud 19, 231–250 (2011). https://doi.org/10.1007/s10691-011-9188-z

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