Earlier this week, I blogged about the movie Gladiator and the hurdles that must be overcome to prove that a gift made prior to death was made voluntarily. Today, I wanted to discuss the TV series, Downton Abbey, and conditions that existed in early 19th century England which prohibited the voluntary testamentary disposition of certain assets and titles.

The series centres around an aristocratic family, the Crawleys, and its patriarch, the Earl of Grantham, who, as a result of the sinking of a ship similar to the Titanic, is left without a male heir other than a distant 3rd cousin who is barely familiar to him. The plot is driven by a legal concept called an entail, which encompasses an inheritance of real property which cannot be sold or devised by will and which can only pass by operation of law to the owner’s heirs upon his death. In the series premiere, it is explained that the Earl’s land as well as his wife’s familial wealth which she brought to the marriage are included in the entail. This system of estate succession appears to be a primitive form of forced intestacy which passes wealth to family members but fails to recognize female beneficiaries in the table of consanguinity. Without a male heir, surviving dependants of the deceased can be left destitute only as a result of their gender. We are told of the Earl’s daughter’s pending marriage which is motivated solely to produce a male heir.

While this show certainly highlights the dramatic evolution of estate planning and estate succession since the early 19th century, to me, the biggest contrast is the development of the Family Law Act and the election available to the surviving spouse. We have come a long way since the antiquated concept of an entail. In stark contrast to Downton Abbey, any person with testamentary capacity can bequeath their assets to any person they choose. However, there are statutory limitations on testamentary freedom, including the Succession Law Reform Act and the Family Law Act. Today, even if a spouse is intentionally disinherited, they are entitled to elect to equalize their net family property and avoid many of the devastating concepts explored on the show.

While our system is hardly perfect and ever evolving, perspective and a sense of history are often the best learning tools.

While I am not an Earl and I have no Abbey to pass on to my heirs, I am certainly happy that my daughter has the benefit of these modern statutory regimes.

Jonathon Kappy