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  1. Law
July 30, 2012

Probate Problems Mean Your Money May Not Go Where You Want

By Spear's

Not having a proper will can cause all sorts of problems after you die. You may not care, but your dependents will, says Jacqueline Almond of IBB Solicitors
Statistics produced by the Ministry of Justice show that over the past five years there has been a doubling in the number of probate disputes being dealt with by the High Court. There are likely to be a number of reasons for this but high profile cases such as those involving the RSPCA and the estate of Sir Jimmy Savile, to name just two, provide clues for the increase.

Over many years, family arrangements have become more complex. Figures produced by the Office for National Statistics in 2011 show that the number of children born to unmarried parents was almost half the number of births. Added to that over many years, the divorce rate has increased and so too has the number of second families.

During this time, the intestacy rules have not changed in respect of the beneficiaries who are provided for. ‘Common law’ spouses are not recognised in law and therefore on the death of one partner, the assets (unless held jointly) may pass to children or other family and not to the survivor.

While the Inheritance (Provision for Family and Dependants) Act 1975 (as amended) creates a category for couples who have lived together as husband and wife, there has been no such provision under the intestacy rules. Instead, those who are not provided for are left to make a claim if agreement cannot be reached (by way of a deed of variation) and so risk the costs and distress of litigation.

On the other hand, there should be a degree of responsibility in planning for these more complex family arrangements. A well drafted will is a good basis for avoiding some of these issues (in particular the effects of the intestacy rules) and yet Law Society figures indicate that still some two-thirds of the population does not have a will. Money spent on a professionally drawn will at an early stage is likely to be repaid many times over, in avoiding a claim.

However, it is important that wills are kept up to date. Most people are unaware that marriage or remarriage revokes a will. Equally a change in circumstances may necessitate a change. The increase in wealth, despite the recent economic turmoil, is likely to be one reason why disappointed beneficiaries consider that it is worth making a claim. On the other hand, a sudden decrease in the value of assets may leave some beneficiaries disappointed depending upon the wording of the will.

Added to this is the increase in life expectancy and dementia. Many cases are brought on the basis that the deceased lacked capacity or where there are concerns that a family member or carer has exerted undue influence in the making of a will. Again, in cases such as these, it is important for the individual to have the benefit of professional advice which can, in some cases, head off a claim at an early stage.

Children often consider that they have an automatic entitlement to a parent’s estate, particularly if both parents are dead or if there has been a subsequent remarriage. Parents may not feel the same. They may consider that they have already made provision for their children or that their children are better off than they are.

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There may have been a period of estrangement or one child may have provided more care and support. Legislation cannot provide solutions to these and many other factors so as wealth increases and our lives become more complicated, it is likely that the number of cases involving challenges to wills or applications for financial provision will continue to rise.

Jacqueline Almond is partner and head of Wills, Trusts & Probate at IBB Solicitors

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