Gilmartin, Sarah and Mayfield, Benjamin and Xu, Lu (2024) Controlling wealth from beyond the grave - who controls the distribution and use of a deceased’s estate and who ought to inherit it? : a study of Inheritance Law, introducing and utilising bloodline justice theory to understand the economic, moral and social considerations influencing common law and legislative developments in the last 200 years and contemplating possibilities for reform. PhD thesis, Lancaster University.
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Abstract
The laws of inheritance and succession (“Inheritance Law”) are both a product and means of social and economic change, as well as moral influence. An historical analysis of the law in England and Wales will assist to understand both the founding principles and development of Inheritance Law. By reference to case law and statute it will be possible to identify where Inheritance Law has failed to react and keep pace with social development and to assess how laws of the early nineteenth and twentieth centuries fit within twenty-first century society and property laws more broadly. “Bloodline Justice” is introduced as a theory of, and a lens through which to study, Inheritance Law. It is the theory that one can inherit or may have a right to inherit based on bloodline relationship to the deceased or because one sits within the circles of closeness to the same. It is utilised to analyse how moral and social theories have operated for and against the interests of the living and the dead, critically analysing key areas where there is scope for conflict. Testator control is a convenient way to arrange property transfer on death, but the capacity to challenge also necessary. Consideration will be given to the rationale and morality of allowing the dead testamentary freedom, as regard the distribution of wealth to the living and sometimes also the use of it, with reference to restrictions the law has attempted to place on that freedom. This thesis will therefore critically examine how Inheritance Law is influenced by wider historical, social and moral perceptions of what our laws in this area should be and for whom they should provide, from a starting point of bloodline justice. The main mechanisms to transfer property on death will be considered, and challenges to Inheritance Law and bloodline justice in the twenty-first century will be evaluated. It is recognised that whilst there is a pragmatic need in any system of law to enable property transfer on death, difficulties arise where an historic system of law coalesces with individual testamentary freedom in a rapidly changing environment. Current statutes are numerous and archaic, common law judgments varied, and the make-up of society and familial relationships so diversified since current Inheritance legislation was drafted that Inheritance Law is, at best, in need of holistic review and consolidation, if not reform.