Making a will is still worthwhile

Family Law|July 28th 2015

There has been a lot of discussion about making a will in the media today. I was happy to be invited to participate. I appeared on BBC 5 Live for a rather sparky interview with Adrian Chiles, gave advice to Lembit Opik on Radio Kent and was on Jeremy Vine’s show on BBC Radio 2 at lunchtime. Additionally, I did several interviews on other local radio stations as everyone tried to make sense of a recent ruling. I am also scheduled to appear on the BBC News 24 TV Channel this afternoon to talk about the subject.

So what has grabbed everyone’s attention? The Court of Appeal declared that, following a decade-long legal dispute, a woman should be awarded £164,000 from her mother’s estate.

What makes this decision controversial is that the mother and her only daughter had been estranged for 26 years prior to the mother’s death and her will reflected that fact. She left a substantial share of her estate, which came to around £500,000, to various animal and bird charities while her daughter did not receive a penny. She also left strict instructions to contest any claim made by her daughter.

The consensus among the media appears to be that a will is not worth the paper it’s written on. If the Courts can simply make changes to a person’s last wishes, what is the point of making a will in the first place?

Right off the bat, I want to say that I fundamentally and unequivocally disagree with such a premise.

Despite what the headlines may lead you to believe, this case does not represent a landmark shift in the way wills are treated. It is simply the application of a law called the Inheritance (Provision for Family and Dependants) Act 1975. This states that certain categories of people, such as spouses, children and other dependents such as cohabitees of over two years, have a right to claim a share. If no reasonable provision is made for them in the will, or if a person dies without leaving a will, the courts have the right to make reasonable provision out of the estate.

In this case, the mother made no provision for her daughter whatsoever. Instead choosing to give her money away to charities she had no real connection to during her lifetime. It was a capricious choice by the mother. To make matters worse, the daughter was in a very difficult financial situation and some of the estate had come from her late father whom she never knew.

The Court of Appeal took all this into consideration before it made the award, which gave the daughter enough to buy her home. In the end, it was not even half of the mother’s total estate. Seems pretty reasonable to me.

This was an exceptional case and should not be treated as the new normal. You cannot reasonably expect to disinherit your spouse or children completely in favour of a local dogs’ home. That sort of bequest would be undoubtedly altered by the courts. If there is reasonable provision for anyone you maintain there shouldn’t be a problem.

Without a will, or with unreasonable provisions in a will, the people you love will have to go through the headache of litigation in order to deal with your assets. It can also have an adverse effect on cohabitating couples. Unless it is clearly stated in a will, such couples have no right to a share of each other’s estates. There are also tax consequences to think about too.

Despite what the media may be saying, I cannot emphasise enough the importance of having a will and of course, of good legal advice.

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comments(2)

  1. Pete says:

    I was told to make a will during my divorce but I was it ended up being the will of the solicitor rather than mine, perhaps the Will as it is known should now be renamed.

  2. Les says:

    I think this is where the courts go too far. Frankly I find this disgraceful. It’s ones right to manage their finances as they see fit on lifetime and on death and there is normally good reason why a family member is cut out of a will. The IHT Act 75 also makes potential provision for ex spouses, surely it is the responsibility of the ex spouse to insure against any financial hardship (health allowing) rather than the courts yet again being allowed to dictate who gets what and when.

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