Heather Conway

Property and Emotions

Relatively little has been written on the connection between property and emotions from a legal perspective, despite the centrality of property in everyday life and the complex relationships that exist between owners and their property. Scholars working in other disciplines have analyzed these links, identifying “proprietary” emotions and corresponding emotional traits. However, little has been mapped onto the field of law. This article looks at key emotions surrounding property as identified in psychological and, to a lesser extent, sociological literature. After mapping these onto selected areas of property law, it posits the need for a deeper and more collective field of inquiry.

Rights versus responsibilities: adult children, parental wealth and contested wills

The Inheritance (Provision for Family and Dependants) Act 1975 allows courts in England and Wales to alter the distributive scheme of a will (or intestacy allocation), where certain statutory criteria are met (see generally Douglas, 2014). Applications are restricted to specific relatives and dependants of the deceased (listed in s 1(1) of the Act), who must demonstrate that the will (or intestacy) failed to make ‘reasonable financial provision’ (1975 Act, s 1(2)). Success is not guaranteed, and courts must apply a range of both general and category specific factors when assessing individual claims (1975 Act, s 3(1) and ss 3(2)–(4), respectively). The recent ruling of the Supreme Court in Ilott v The Blue Cross Society [2017] UKSC 17 (also known as Ilott v Mitson) ends a long-running legal saga, involving an adult daughter who had been excluded from her mother’s will. This is the first time that a family provision case has reached the highest court in the UK; but while this particular litigation is now over, and the right outcome (in the author’s opinion) more or less reached on the facts, important issues remain. The facts of the case can be summarised briefly. Heather Ilott and her widowed mother, Melita Jackson, had been estranged since 1978 when Heather left home to be with, and subsequently marry, a man that her mother disapproved of. Mother and daughter never reconciled (there had been several futile attempts over the years), and when Melita executed her final will in April 2002, she left her entire estate to three animal charities that she had no lifetime connection to. Melita wrote to her daughter, informing her that she would inherit nothing; Heather replied, accepting this. When Melita died in 2004, The Blue Cross, RSPB and RSPCA were gifted a net estate of £486,000. Heather Ilott, then aged 44, was mother to five children, had not worked since the birth of her first child in 1983 and was living in a 3-bedroom property rented from a Housing Association. Her husband worked part-time, and the family were dependent on state benefits to meet basic living expenses. What followed was a lengthy legal battle. In 2007, District Judge Million ruled that the deceased had not made reasonable financial provision for her daughter under the 1975 Act, and awarded Heather £50,000 from the estate. Dissatisfied with the amount, she appealed; however, Eleanor King J set aside the decision, finding no failure to make reasonable financial provision ([2009] EWHC 3114 (Fam)).

Burial Instructions and the Governance of Death

In the closing chapters of the Book of Genesis the patriarch Jacob, on his deathbed in Egypt, demanded that his son Joseph swear a solemn oath that he would not be buried there, but taken back to the ancestral tomb in his homeland of Canaan.3 Despite being content to live in Egypt to escape the ravages of famine, Jacob’s insistence on being buried with his forefathers resulted in his body being returned to Canaan. At the end of 2006, Davender Ghai instigated legal proceedings against Newcastle City Council asserting the right an as orthodox Hindu to be cremated on an open-air funeral pyre. Having recently presided over a similar ceremony,4 Mr Ghai argued that open-air pyres were commonplace in India and that their absence in Britain prevented the transmigration of the deceased’s soul. A judge upheld the council’s refusal to set aside land for this purpose, on the basis that English law only permits the burning of human remains in a crematorium.5