Intestacy Rules – How To Plan For The Future

March 1, 2011 11:49 am - Categorised in:

Intestacy Rules

A number of cases have come across my desk in recent times that very graphically illustrate just how vital it is to have a Will, especially when one is not married.

The first case relates to an elderly gentleman who, in the later years of his life, led a somewhat reclusive existence.  To a large extent, he had lost touch with most members of his family but he did enjoy a very close relationship with one relative.  As it happened, despite a very frugal lifestyle he had accumulated significant wealth over many years.  Unfortunately, he never saw fit to make a Will which meant that on his death his estate stood to be divided between those members of his family that the law recognised as the heirs of his estate.  Sadly, they did not include the relative who had had so much to do with him whilst alive.  They did, however, include members of the family with whom he had had little contact for a number of years.

The next case involved a woman who had recently been admitted to a care home suffering from dementia.  For many years she had lived with a man in the house that she had bought in her own name.  Over the years their relationship had become as close as that of many a married couple and the man had made a significant contribution towards paying off the mortgage on the property.  Unfortunately, the woman had never made a Will benefiting anyone, let alone her partner with whom she had shared his home and life for decades.  The problem is what will happen if she dies before her partner, leaving no Will.  Under the rules that apply at the moment (“the intestacy rules”) her partner has no automatic rights of inheritance.  The situation would be entirely different had she made a Will whilst she was able to do so.  Now she may well no longer have the requisite mental capacity to do so.

The third situation relates to another individual who had been living with a partner for several years in the house that he had bought before the start of their relationship.  He had never been married but had children by a previous relationship.  He had three children with his last partner.  Sadly, he lost his life in very tragic circumstances.  Technically, his estate stands to be divided between his children.  His partner has no automatic rights of succession and if she is to make a claim on the estate, this would involve her actually challenging the inheritance of, amongst other people, her own children!  The situation becomes even more complicated because one of the deceased’s children actually lives abroad and her whereabouts are not altogether clear.  Furthermore, the person who logically should apply to the Court for the right to administer the estate of the deceased would be his partner in her capacity as the mother of three of the would-be heirs of the estate.  However, she is the very person who might wish to challenge their inheritance, as being financially dependent upon the deceased……….

All these situations could have been avoided if the individual who had died had made a Will.  It seems to be a fairly unchanging statistic that approximately two-thirds of the adult population of this country have not made Wills.  The heartache and unwelcome hardship to which this can give rise to those that one leaves behind are obvious.  A huge number of couples are now choosing not to get married, for financial and other reasons.  The two latter cases that I have outlined above illustrate very graphically just how short-sighted this can be and the potential mess that can arise as a result of a Will not having been made.

At the moment, we are all thinking about what financial economies we can make.  Unfortunately, the decision to not make a Will or perhaps to try and make one yourself without proper legal guidance can be an extremely false economy.  In short, whenever there are persons you should be looking after in the event of your death, it is vital to make a Will to protect them from the fall-out resulting from leaving no Will.

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About Duncan Lyon

Duncan Lyon is one of our directors and is the head of our Wills & Probate department.

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