Contested Wills Are Costly, And More Common Than You May Think10th Jul 2019
When it comes to the distribution of your estate after death, you may believe that the correct recipients, as well as their entitlement, are obvious – but this is only true if your will is both present and relevant.
Perhaps you’ve been putting off writing a will, believing you have many years to go (and we sincerely hope you do). Or maybe you’ve had a will prepared for some time, but it doesn’t quite reflect how life has changed in the interim – for example, due to more recent births or deaths in your family.
Regardless of the circumstances, failure to have an existing or up-to-date will can cause a real crisis for your surviving family members – and the consequences are well-documented.
When there is no will, or an out-of-date will, the aftermath of a family member’s death can be as tragic as the death itself.
You may have seen a recent news report regarding a couple who were sadly found dead in their home in Southend-on-Sea in October 2016.
John was 79, Ann was 69 and they had been married since 1989. They had both been married previously, and each had adult children from those marriages, all of whom lived relatively close to the couple. The couple died of hypothermia, having frozen to death in a particularly cold autumn.
To add further calamity, John and Ann passed away without having made wills. As a result, the family is now arguing in the High Court over how their modest estate of around £300,000 should be distributed.
The case now hinges on who was deemed to have died first – only then can the court decide whether the estate goes to John or Ann’s children.
It’s quite plausible that both John and Ann wished for children on both sides of the family to inherit their estate – a wish that will now not be realised. Of course, had they made wills, this lottery could have been completely avoided.
Situations such as these are, frighteningly, not as uncommon as you may think.
In fact, I’m currently dealing with a similar case.
An elderly gentleman with three siblings left a will, but it had not been updated following the death of one of his sisters.
She was appointed as his sole executor – and the sole beneficiary of his estate. Had she survived him, she would have inherited around £400,000.
However, because the will did not appoint a substitute executor (nor substitute provisions in relation to his estate), it will now have to be dealt with under the intestacy rules; and the resulting distribution will be markedly different from what I believe were his intentions.
Instead of his sister inheriting around £400,000, it will be divided as: one third for his surviving 91-year-old sister, one third for his surviving 76-year-old brother, and the remaining third equally between the six children of the sister who died before him.
This is a very different state of affairs to what this gentleman had in mind for his hard-earned estate. Moreover, it would have been successfully avoided if properly prepared wills had been executed, as well as kept up to date to reflect any change in circumstances.
We live in a litigious society, where situations such as these are sadly not exceptional or reserved for the headlines.
As the value of even a modest estate is significant, we are seeing an in increase in the number of wills that are contested.
Of course, there is a cost associated with requesting a lawyer to create a professional will, which may cause you to delay the process. However, the price of having a poorly prepared, home-made or out of date will could be far higher – particularly for your family, who may need to pay thousands in legal fees before it can be fairly distributed, thus eroding your hard-earned estate.
In the absence of a will, lawyers will need to act as per the intestacy rules, which may produce a result that is not in accord with your wishes – but this can be easily avoided. The cost of having a will drawn up by qualified, experienced lawyers may not be as high as you think.
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This document is not intended to constitute and should not be used as a substitute for legal advice on any specific matter. No liability for the accuracy of the content of this document, or the consequences of relying on it, is assumed by the author. If you seek further information, please contact Managing Partner Neil Andrews at Coles Miller Solicitors LLP.
