Last will and testament?

Final wishesFinal wishes

Local inheritance specialist Derek Lindsey of the Moneta Partnership looks at two recent cases involving will disputes to highlight the importance of not only having a will but keeping it up to date.

In England, everyone has complete freedom to dispose of their assets on death to whoever they wish by using a will. Without a will (known as dying intestate) a person's estate will pass to close family according to a strict order of priority as laid down by law.

However, the Inheritance (Provision for Families and Dependants) Act 1975 recognises that certain categories of people, such as spouses, civil partners, children and people being maintained by the deceased, should have 'reasonable financial provision' made for them. In effect, for spouses, the test of reasonable provision is similar to a divorce, and in other cases it is maintenance.

Two recent cases are of particular interest. The first is lott v Mitson, which took 10 years to work its way through the courts until the Supreme Court gave a decision last year. In this case, a mother left all of her estate of about £500,000 to various animal charities (although there was little indication she had supported them in her lifetime) and cut her estranged daughter (of about 30 years) out of her will. The mother and her solicitor had made proper notes of her reasons. The daughter, who was on benefits, challenged the will under the 1975 Act and the original judge awarded her £50,000. This was not enough for the daughter and she appealed. The Court of Appeal then upped the award to about a third of the estate and so the charities appealed this decision. The Supreme Court disagreed with the Court of Appeal's ruling and went back to the original judge's award of £50,000. How much this all cost in legal fees and who paid is not known!

In a second case reported recently (Ubbhi v Ubbhi), a husband, who was divorcing his wife, died suddenly. The husband's will, which was made some time before his death, left everything (about £4.5m) to his wife. As he was still married to his wife at his death, his will was still valid (if he had been divorced with a decree absolute it would not have been). However, the husband had a second family with two minor children (born after he had made his will). The children's mother made a claim on behalf of her children under the 1975 Act, including provision for private schooling. The court ignored the claim for private education but did award about £1.4m for the children's maintenance.

The moral of these cases is to make a will and keep it up to date, and take specialist advice when drawing up a will, especially if complicated relationships are involved. Every case is different and, if the 1975 Act is invoked, the courts will judge each case on its merits.

Derek – who is a Fellow of the Institute of Paralegals and a Member of the Institute of Professional Willwriters and abides by their codes of conduct – will be at the Wanstead Business Network stall at the Wanstead Festival on 16 September to answer any queries about inheritance. For more information, call 020 8491 8396

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