OpenAI’s Governance Problems and Their Wider Impact
June 8, 2025
Article by Sydney Kowalczyk
‘Freedom of testation’ is a key component in the law of succession and states that the testator should be free to dispose of their assets as they see fit. Predictably, unquestioningly respecting the testator’s wishes might not always lead to a fair outcome. The testator might have individuals who are dependent on them or people they are morally responsible for providing for. Hence, the law imposes some limitations in relation to testators’ disposition of assets.
The division of assets after death is regulated by an assortment of Acts, rules and precedents. Distribution is not always straightforward since assets extend beyond money, land and sentimental items. The law is rippled with technical definitions and complex cross-references across the sea of legislation.
In inheritance law, pets are considered personal chattels (property) rather than family members; the disposal of the deceased’s physical body will be decided by the appointed personal representatives because it belongs to the estate; marriage revokes a will. Many people are unaware of these rules and many more, which can lead to disputes following a death.
Administration of Estates Act 1925
When a person dies without leaving a valid will (intestate), their assets will be distributed according to section 46 of the Act – in accordance with the prescribed ‘order of priority’.
Intestacy rules ensure that in the absence of a will, the estate does not pass directly to the state as bona vacantia but instead is shared between family members.
Wills Act 1837
To be valid, a will must satisfy the formalities under s.9 of the Act, and the testator must have had the necessary testamentary capacity during the execution of the will.
Perhaps some people are not keen on leaving their money to a deadbeat dad or a ‘mommie dearest’; a disowned adult child or a disgraced sibling might be deemed to be equally undeserving by the testator. As a general rule, a valid will allows the deceased to choose who their assets end up with, meaning they do not have to rely on the default order of priority set in law.
Inheritance (Provision for family and dependents) Act 1975
By making an application for a family provision, certain people may be able to benefit from the deceased’s estate despite not being the intended beneficiaries, either due to being disinherited or intestacy rules operating against them. The fact that certain individuals may get a benefit from the deceased’s estate, potentially against the deceased’s wishes, is controversial because it undermines the deceased’s freedom of testation.
In certain situations, the intersubjective view is that a will should be contested. In traditional relationships, the testator attempting to disinherit a spouse who worked as a housewife throughout their marriage does not seem fair because, although not a breadwinner herself, most would recognise her to be entitled to her partner’s estate. In blended families, stepchildren will not automatically be entitled to anything if not included in the will; they are not recognised as the testator’s linear descendant due to the lack of a birth or adoption certificate signed by the testator.
Section 3 of the Act asserts that when there are multiple competing claims, the court is to have regard to “financial resources and financial needs” and to balance the claims against each other; other factors, such as the size of the state, must also be considered.
Some individuals, or ‘lame ducks’ (as referred to by Lord Kerridge), could claim inheritance by proving they lack earning capacity. This rule often leads to resentment between siblings/step-siblings. Others can argue that a ‘reasonable financial provision’ has not been made for them in the will, similarly jeopardising family relationships in the process.
The testator could take steps to reduce the chance of a family member or dependent claiming under family provision legislation, such as adding a ‘letter of wishes’ to their will. Moreover, a financial settlement or a clean break order agreed between the spouses will be taken into consideration as per s.15. Further, there are instances where family provision does not apply, such as where a mutual will exists; upon the testator’s death that property no longer forms part of their estate, hence cannot be passed down to an applicant under a family provision.
In reality, not every disinherited eligible applicant is willing to apply (for the sake of maintaining harmony or due to the potentially high cost of litigation); some apply too late, and others apply but are unsuccessful.
Ilott v The Blue Cross, a particularly prolific case, illustrates the court’s power to resolve these disputes.
Ilott v The Blue Cross (2017)
A wealthy mother disinherited her long-estranged daughter, who was surviving off state benefits because she did not approve of her “lifestyle choices”. Instead, she left all her money to a charity and had expressly stated she did not wish for her daughter to benefit. Despite this, after the testatrix’s passing, the courts awarded the applicant a substantial sum of money, albeit limited only to what was considered reasonable for her maintenance (and below the earnings threshold so as not to compromise her state benefits).
This was decided on the basis that certain categories of people can apply to claim reasonable financial provision from an estate if they are not adequately provided for in the will. On the one hand, an award to the daughter would have to be made at the expense of the testatrix’s intended beneficiary; many charities heavily depend on testamentary gifts for their funding. On the other hand, family provision can be used to “relieve the State of the obligation to support an applicant”. However, Judge Nicholas Wall argued he did not decide Ilott on that basis. Interestingly, the testatrix did not have any connection to the beneficiary charities; this, coupled with her will failing to make reasonable financial provision for her daughter, formed important considerations for the court.
Influence of other laws
Where property is owned by joint tenants and one co-owner dies, the doctrine of survivorship applies, and the property automatically passes to the surviving owner (e.g. the surviving spouse). This is an important doctrine because many people’s wealth is tied to the value of their matrimonial home.
The Children Act 1989 states that a parent who has parental responsibility for their child may appoint another individual to be a child’s Guardian in the event of their death.
Prenuptial agreements are often capable of overriding the distribution of assets as outlined in a will or set by intestacy rules. Although not legally binding, they are a significant document that the courts will consider where the will’s and prenuptial agreement’s provisions contradict each other.
Amending the will
Over time, family disputes might arise, grandchildren might be born, new assets might be purchased, old ones sold off, and laws (for example, on taxation) might change. These factors will likely lead to the will needing to be updated to reflect these changes. This can be accomplished by adding a codicil (a legally binding document that amends the will).
Additionally, it is recommended to include a ‘letter of wishes’ to accompany a will. Despite being non-binding, the court will heavily contemplate it should any inheritance claim arise. Therefore, its inclusion may help the court to decide the dispute in favour of the testator’s wishes.
The will needs to be drafted, signed and witnessed properly for the original and any later amendments to be valid – this is why it is advisable to work with a solicitor to ensure the document is valid.
Vulnerable individuals
Sometimes, naming a person in the will does not guarantee that they will be entitled to the inheritance, even despite, for example, a lack of competing claims from the family provision application.
Even in cases where vulnerable dependants do not struggle to access their inheritance, they might still be worse off due to the loss of means-tested benefits, care or support.
Leaving money to a vulnerable defendant usually requires relying on a vulnerable person’s trust (VPT). Using a VPT is a way for assets to be held and managed for a vulnerable beneficiary (for instance, due to age or disability) who, as a result, cannot manage their own finances.
The sanctity of marriage
Although controversial, family provision is not the only way in which testamentary freedom is restricted. Factors such as the testator lacking mental capacity, findings of undue influence, and not meeting the necessary formalities to make a valid will would equally result in a potentially different outcome from what the testator intended.
Many people don’t realise that signing the marriage schedule means they are signing away their previous will. This is subject to an exception; if the will was made “in contemplation” of that specific marriage, it will not be revoked by it.
In a world of ‘shotgun weddings’, ‘marriages green card’ and ‘lavender marriages’, it is easy to see the incentive and the plethora of benefits that legal marriage offers. Inversely, it is clear that individuals are disadvantaged when the law does not recognise a marriage. This is illustrated in cases of religious marriage ceremonies with no legal standing that can be used to exploit a spouse fully committed to doing their part in a marriage, blissfully unaware that they are not receiving any legal entitlement that the commitment is typically rewarded with (such as priority under intestacy rules).
Recently, the Law Commission has focused on the opposite side of the weaponised marriage spectrum – they advised the government (executive) to propose some changes in this area of law. One of the proposals was abolishing this rule of marriage revoking a will, expressing concern that this rule could be exploited for the purpose of a ‘predatory marriage’.
New proposals
Aside from abolishing the rule that marriage revokes a will, the Law Commission referred to further amendments.
Provided that the testator’s intention is clear, the courts will have the power to ignore a lack of full compliance with the formality requirements and uphold the will as valid.
The COVID-19 pandemic led to wills being witnessed remotely in the UK, and several countries allowing for electronic witnessing and signing of wills. Despite benefits like speed and greater accessibility, PDF documents are easily editable, and risks will likely arise with increased cyberattacks or fraud, leading to unwanted alterations.
Further, the Commission proposed to lower the threshold for challenging a will on the basis of undue influence to offer better protection to vulnerable testators.
These proposals aim to decrease inheritance disputes and litigation and minimise bereaved families’ distress.
In conclusion, inheritance disputes are resolved by balancing the deceased’s freedom of testation against their perceived commitments (e.g. to dependants). To resolve disputes, the court is tasked with considering the specific facts of the case and factoring in many documents, such as prenups and letters of wishes, to determine a just outcome. In May, the Law Commission voiced its concerns with the current laws on inheritance and expressed a few suggestions to remedy these issues. In response to these suggestions, there seem to be two schools of thought. Those who agree with changing laws to better accommodate non-traditional relationships, such as cohabitants or blended families. And the antis, whose argument can be truncated to the Wills Act dating back to the Victorian Era and many years passing without pulling that thread. Perhaps educating the public about the laws they are subjected to (hence allowing them to make informed and intentional decisions about their lifestyle choices) can achieve the same outcome as the proposed change in legislation without the need to involve the executive or legislature.
