My parents refuse to make a will, what can I do?

Stowe Family Law news placeholder logo
March 15, 2017

Senior Solicitor Claire McParland appeared on St Albans radio station Radio Verulam this morning to answer family law questions from listeners. These included one whose parents refuse to make a will and another who had a query about maintenance payments.

The listener who said his elderly parents refused to make a will asked for advice and what would happen if they die without one. Claire explained that if someone died without a will, the intestacy rule would be applied. Various factors would be taken into consideration when distributing the assets, including if the deceased was married or in a civil partnership.

She also tackled questions about issues such as cohabitation and marrying a foreign national with British citizenship but no paperwork.

Transcript

CMP:                              Claire McParland

PR:                                  Phil Richards

PR:                                  Time now for our monthly feature on family law. Joining us Stowe Family Law with family law advice is family law solicitor Claire McParland. First question, my mother and father are very elderly and both refuse to make a will. In the event of them passing away, what would happen to their estate?

CMP:                              If the mother and father refuse to make a will then property would pass under what is called the intestacy rule. The outcome would be dependent on whether they were married or a registered civil partnership and they’ve got children. Assuming in this scenario that the parents are married and there clearly are children then once one parent passes away then the other parent would see the first £250,000 and then half of any residue. The children would receive the balance. It is quite complicated the intestacy rule so I would suggest looking on the government website https://www.gov.uk/inherits-someone-dies-without-will and it will explain what happens in individual circumstances when someone passes without having a will.

PR:                                  Can it be contested?

CMP:                              It can be contested. Firstly, if all the beneficiaries were to agree to do something different they could execute something called a Deed of Variation within the first two years. That would alter the terms of how the money would pass but they would all need to consent. Otherwise, they’d have to make an application under the Inheritance Provision for Dependants Act 1975. It is quite a complicated area of law so always suggest getting expert legal advice if that was something you wanted to do.

PR:                                  My boyfriend is from a war-torn country and gained British citizenship last year. We wish to marry but he has no documents; he hasn’t got a birth certificate. What do we do?

CMP:                              The boyfriend will have to provide some document but it doesn’t necessarily have to be a birth certificate. He has to prove three things:

  1. His name, age and nationality
  2. Evidence of being settled and having a settled status in the UK
  3. Proof of address

Evidence of the British citizenship and the right to stay in the UK would probably be enough. There would also be a need to provide photo ID and something to prove his address. Something like a bank statement or a utility bill would normally be okay. I would normally suggest calling the local register office advice line if anyone is unsure. There is a phone number for that which is 0300 123 4045, and that is for Hertfordshire.

PR:                                  I give my ex-girlfriend and my daughter’s mother a lump sum every month as maintenance. My ex wanted to legitimise this and get the arrangement on a formal basis and said she can take this through court and force me to do what she wants. Can you give some advice on this?

CMP:                              It is not quite as simple as that. The ex-girlfriend will only be able to apply to the courts for child maintenance in limited circumstances. If a court order was made prior to the 3rd March 2003 and if a court order is made after that, it has to be less than 12 months old. If the parties have agreed a figure, you can agree to then put that into a court order. The court only have jurisdiction for a period of 12 months, otherwise jurisdiction belongs to the Child Support Agency (CSA), now known as the Child Maintenance Service (CMS). They have a limit. If it was a CSA assessment then it would be £104,000 net per annum for your income, or if it’s CMS it is £156,000 gross limit for your income. So the court can then have jurisdiction to make what is called a top up payment. Otherwise it is dealt with by the CSA or the CMS. There are a few other limited circumstances when you can apply to the court but you can’t just go off and make a court application. If you don’t fit one of those criteria then you would have to go through the CSA or now the CMS. They would carry out the assessment and deal with any disputes. They have, quite helpfully, an online calculator so you can assess what the correct level of payment should be. The information is quite straightforward to read: www.gov.uk/child-maintenance.

PR:                                  I am thinking of building up a property portfolio but I want to protect it, especially if I split up with my boyfriend. It will all be in my name and he won’t be an investor. What do you advise?

CMP:                              Cohabitants don’t have the same rights to make property claims as married couples or civil partners. Disputes between cohabitants regarding their interests in property are determined with the law trust. The ‘common law’ wife or husband does not exist in law, claims by cohabitants are very limited compared to if you’re married or have a civil partnership. There are two ways which a cohabitant can show they have an interest. Firstly, if they are saying that they are a joint owner. Secondly, if the property is in the other person’s sole name they can try and establish there is a trust. That can be expressly stated or otherwise can be implied. So, in those circumstances, an application can be made under the Trusts of Land and Appointment of Trustees Act. The best way to avoid any dispute in future and to avoid a claim under that Act is to a declaration of trust. This will expressly set out the agreement with the boyfriend and there will be no interest in the properties. The only caveat on that is it will not protect against claims for children. So, there are limited circumstances where applications can be made on behalf of children in the future. It is something to think about. Again, it is a very complicated area of law so I would advise expert legal advice to be taken if there were to be children.