WHAT DOES IT TAKE……..
I am not sure how many articles I have written attempting to persuade people to make Wills, but it must run into dozens. As I write this, I note that the National Consumer Council has announced that more than 27 million people in England and Wales do not have a Will and, most worryingly, that those who need one the most are the least likely to have one.
In previous articles I have used true facts to illustrate the difficulties that arise in dying intestate. I do so again.
This is the tale of Mr. A. Mr. A was married to Mrs. A for very many years, and they had a family together. For reasons that I do not know, some 10 years ago, Mr. & Mrs. A separated. As time went on, Mr. A struck up a liaison with a lady and so for the past 10 years he and she have lived together. They share a house which is in his name and subject to a mortgage, they have a joint business venture, which is reasonably successful but needs some attention, and the future is looking rosy, or rather it was, until Mr. A died recently. As if his untimely death were not enough for his partner to cope with, two facts then materialised. Firstly, Mr. A had never divorced Mrs. A, and secondly he had never made a Will. The results are devastating.
I imagine that Mr. A’s estate will net out at around £300,000, certainly below the limit at which inheritance tax is paid. Because Mr. A did not make a Will and did not divorce, then his beneficiaries are his wife, whom he had not seen for more than 10 years and his daughters, who are now well into their 20’s. The Rules of Intestacy say that Mr. A’s widow will receive his personal chattels and the first £200,000, half of the balance will be paid to the daughters, and the other half will be held in trust for the widow for her life, and then go to the daughters.
What though of Mr. A’s partner. Well, there is no such thing as a “common law wife”, and she therefore has no automatic entitlement to benefit from Mr. A’s estate. Assuming that Mrs. A will not negotiate then the late Mr A’s partner really has only two choices, one is to capitulate, but that means losing everything. The alternative is for her to issue proceedings against Mr. A’s estate under the Inheritance (Provision for Family and Dependants) Act of 1975, on the grounds that she and Mr A lived together as husband and wife for more than 2 years. It is vaguely possible that another ground is available to her, namely that she was dependant upon Mr. A immediately before his death, but that is not so strong an argument.
Given the size of the estate, one would hope that this is not a matter that would go to Court, because the costs would be out of all proportion to the value of the estate, but that cannot be guaranteed. The vain hope is that there can be a negotiated settlement. Mr. A’s partner would argue on moral grounds that she and Mr. A had lived together and perhaps had created much of this wealth, whereas Mrs. A might respond by saying that it was Mr. A’s choice not to divorce her and not to make a Will, and he must be deemed to have been aware of the consequences of his in-actions.
And that is the awful thing. It is not that Mr. A did anything wrong, it is in fact the opposite, that he did nothing. In truth a divorce would be neither here nor there after so may years, had he made a Will simply appointing his partner as the sole Executor and sole beneficiary. It would have taken a lawyer all of 5 minutes, cost a few pounds and saved the day.
Unfortunately, some might say tragically, this is a very typical scenario. My colleagues and I come across these sorts of situations and variations on this particular theme almost every week of our working lives.
It is worth looking again at what I said at the very beginning of this column, namely that there are some 27 million people in England and Wales without a Will, and so how many family tragedies are waiting to unfold.
So the question is this, if you are one of the 27 million, what have I got to say to you to persuade you to make a Will?
David Endicott
Managing Partner
