FAMILIES AND WILLS

Andrew Carswell, partner at Dickinson Manser solicitors of Poole and Broadstone explains about some of the reasons why it is important to make a Will.

Advice is often given by solicitors on the importance of making a Will, not least in recent years owing to the rise in property prices which create many more taxable estates than before. Commonly this will recommend specific advice on matters such as inheritance tax, which can save a considerable amount of money.

However, the importance of making a Will is not just confined to saving tax. A properly drawn Will can help to prevent disputes over a person's estate by beneficiaries and third parties. Historically many people have felt that there is little point making a Will as his/her property will pass to next of kin automatically. Unfortunately this is only partly true. The rules of intestacy (the law relating to the administration of an estate in the absence of a Will) are complicated and significantly, (like inheritance tax) have failed to keep pace with general inflation in property prices. The belief that the intestacy rules will benefit members of the family has never been advisable, but it cannot be relied upon and frankly in this day and age is dangerous.

Problems in an intestacy typically occur in a second marriage where the spouse as first in line, might take the whole estate, with no provision for the children of the first marriage. Problems also occur where an unexpected death only leaves a relatively modest amount of money to the surviving spouse but with substantial assets being left to the children. Sometimes all of this can be rectified by good family relations and common sense, but sadly this does not always happen.

For unmarried couples, the intestacy rules make no provision for cohabitees whatsoever. In the absence of other family members, the deceased person's assets could pass to the crown!

Problems of the kind mentioned above can be solved by making a Will. However, unlike most legal problems, a person's failure to make a Will will not affect him but those around him. Fortunately, help can be at hand owing to a little known piece of legislation - the Inheritance (Provision for Family and Dependants) Act 1975. This allows certain persons (spouses, ex spouses who have not re married, children, cohabitants and dependants) to bring a claim if the intestacy rules do not make reasonable financial provision for that person.
The Act also cover the situation where a Will has been made. English law recognises a person's right to leave his/her estate to whomever they choose. Unfortunately though this can produce unfairness and where reasonable financial provision has not been given, the court can step into correct this.

It should be borne in mind that the 1975 Act is not a charter for disappointed beneficiaries, but a measure of judicial control to help people who, legally or morally, ought to be given some financial provision. Strict criteria must be considered before a claim can succeed. This is a complicated subject and expert advice is required by both executors and applicants alike, in the event of a potential claim. People seeking advice must do so promptly. Claims must be brought within 6 months of the date of the Grant of Probate although the court can consider a claim at its discretion outside that period if there is good reason.

From the Will maker's point of view, the 1975 Act is a potential threat against his/her wishes being carried out. Where it is anticipated that a problem might be encountered, specific instructions can be left with the solicitors as to why someone has been included or not. This can be invaluable evidence in the event of a claim under the 1975 Act.

Archive Summer 2005 | next

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