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  1. Law
December 12, 2011

Poorly Drafted Wills Provoke Family Feuds

By Spear's

Ready, Willing and Able

The consequences of a poorly drafted will can tear families apart. Get it right while you can, if not for your own sake then for those you leave behind, says Irene McMillan
A FEW MONTHS ago a simple administrative error left Terry Marley, 52, at war with his adoptive brothers over who should rightfully inherit their parents’ fortune. This unusual case highlights not only the importance of leaving a will, but also the potential for family mayhem should a will not be properly executed.

Mr and Mrs Rawlings had made mirror wills in 1999, but each signed the other’s will in error. This seemingly small technicality was not picked up until Mr Rawlings died in 2006. However, the mistake had huge ramifications as it meant that the couple died intestate. The wills could not be admitted to probate so, under the intestacy rules, the entire estate had to be divided equally between the Rawlings’ natural sons alone.

While Terry Marley was never formally adopted by the family, he was treated very much as a son by Mr and Mrs Rawlings. He had lived in their family home since 1975 and was their sole carer until they died. The wills left everything to the surviving spouse and then to Mr Marley on the second death, effectively disinheriting the two natural sons. Yet the simple signing error meant the Rawlings’ intended wishes were disregarded. Sadly for Mr Marley, his attempt to have the Rawlings’ wishes reinstated by the High Court failed in October.

Unfortunately it’s a common story for an intended beneficiary, often a carer, to be excluded from inheriting a portion of the estate, either because the will has been incorrectly drafted or executed or because there’s no will at all. This leaves the door open for an estranged spouse or family member to inherit under the intestacy rules, despite the deceased’s wishes.

A regular misunderstanding is that spouses automatically inherit everything and that this, therefore, dispenses with the need for a will. In fact, if there is no properly executed will under the intestacy rules, for estates over £250,000 the surviving spouse will inherit all ‘chattels’, ie personal possessions, the sum of £250,000 free of inheritance tax, plus half the remainder of the estate (to include the family home), with the other half being divided among surviving children. The danger is that the half which does not go to the spouse will be subject to inheritance tax, so careful tax planning is advisable.

Just to add to the potential for dispute, unmarried cohabitants do not automatically inherit but are permitted to make a claim if they can argue that they require a financial provision to maintain a reasonable standard of living. This ‘reasonable standard’ is a lower standard than would apply to spouses or civil partners.
WHAT IF BOTH parents have died intestate? The good news is that the estate automatically goes to the surviving children, though again this is made more complex if there are stepchildren and all-but-adopted children to consider (as in the case of Mr Marley). If there are no surviving children, parents or siblings, the net is being cast increasingly widely nowadays to include all blood and half-blood relatives. This can open up the possibility of distant relatives having a claim on the estate.

Don’t think that if you’re not in a relationship or don’t have any children you’re off the hook — unless you want the government to cash in should you die unexpectedly. Treasury solicitors will attempt to trace any potential beneficiaries, but if none can be found your estate will go to the Crown.

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A tip to prevent missing out on what may be legitimately yours is to know your family tree. A client recently came to my firm asking for advice as to the validity of a claim he believed he had on the estate of his two cousins, both of whom died intestate, unmarried and without children. The Crown had already received the assets. He had been told by the Treasury solicitors that, by a further twist of fate, as the mother of both cousins had been born illegitimate he would not have a claim to their estate. Fortunately we were able to challenge this position successfully, given the timing of the illegitimate mother’s death, so our client eventually received almost £200,000 — but legal wrangling with the Crown doesn’t always have such a positive outcome.

Wills can fail for lack of clarity, so be clear as to what is to be left to each beneficiary. Regardless of natural justice, if a court cannot decide your true intentions it will not be able to honour your wishes.

Finally, wills have to be updated as life circumstances change. You may separate, divorce, become widowed or remarry, or you may acquire more children or godchildren. The actor Heath Ledger left a will catering for his parents and sisters, but he died before he could amend it to include his daughter, who was left out of his legacy.

Today’s family setup is varied and often complex, and few things provoke a bitter family feud like a badly written will. To avoid your hard-earned cash being squandered in the law courts while your family tears itself apart trying to work out what you really wanted, just do it — and do it right. 

Irene McMillan works for Kingsley Napley Solicitors

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