A will and the intestacy rules: definition
A Will is a document establishing who will inherit your estate and who will manage your belongings (called administering the estate) upon your demise.
The cornerstone rule of the succession law regime in the UK is as follows: complete testamentary freedom.
Indeed, if no Will is left behind upon our demise, then the intestacy rules apply. This means that the closest relative, usually the civil partner or spouse, is the most entitled person who can apply to manage the estate (by being granted what is called letters administration) and the partner/spouse or children might inherit the full estate.
We will simplify the rules as follows:
- If there are children, or if these children passed away prior to the testator, their descendants, the partner/spouse will inherit all the personal property and belongings of the person who passed, the first £270,000.00 of the estate and half of the remaining estate. The children, once reading the age of 18 years old, will inherit the remaining of the estate.
- If there are no surviving children or descendants of these children, the partner/spouse inherits the whole estate.
While the above seems simple, it becomes way more complex when there is no spouse, no children or where the right to an interest on the deceased’s estate is contested, which more often than never end up in Court and costing the parties a significant amount of money.
In addition, any jointly owned property such as bank accounts, shares and/or real estate will be inherited by the spouse/partner. The joint status of ownership can be changed; we advise to receive legal advice on the above if it is your situation.
On the other hand, having a properly drafted Will means that the wishes of the deceased will be applied if the Will is properly drafted, witnessed, that there is no other conflicting Will and that the original is provided to the Probate Registry at the time of the application to administer the Estate.
The rules above can be more complex than they seem, particularly where the Will is contested. A Will can be contested where it is, among other things, poorly drafted or because the original is lost. It is therefore extremely important to ensure your Will is meeting the formal requirements allowing its validity.
Challenging a will: the grounds
Sometimes, executors, beneficiaries or non-beneficiaries will want to challenge the content or validity of a will.
A will’s validity can be challenged and common grounds include the following:
- The will is not signed or witnessed properly
- The will was forged or the signatures were forged
- The will was the result of fraud
- The testator does not have capacity
- The testator was under undue influence
- The will was signed but its content was unknown and unapproved by the testator
Where you have a valid claim and the grant has not been issued, the procedure to follow is called a caveat. It is an application to the Probate Registry to require a halt in the process of distributing the estate of the deceased. A caveat last six months and can be renewed.
In addition, if you believe that there is an error in the will such as an administrative error or a lack of understanding of the testator’s instructions, which result in the intentions of the testator not being carried by the will, you may be able to bring a claim under the Administration of Justice Act 1982 for the will to be rectified.
Where the will is valid but its content considered unfair – the Inheritance Act 1975
Other possibilities exist where the will is valid but you have been left out of it and unfairly treated. This falls under the regime of the Inheritance Act 1975.
This act allows certain individuals to initiate a claim for a reasonable financial provision where the will left them out.
The Inheritance Act 1975 allows the following people to bring a claim:
- The spouse or civil partner of the person who passed away or their former spouse
- A child of the deceased
- Someone who had been living with the deceased as spouse or civil partner for two years prior to their demise
- Someone treated like a child by the deceased
- Any other person who was maintained by the deceased
What can be claimed depends on the person bringing the claim. The first category of individuals can bring a claim for what is reasonable in the circumstances of the case for their category of individuals. For the other categories, the claim is for financial provisions as it would be reasonable for their maintenance, which means that their claim is limited to what is necessary and not what is reasonable in their circumstances.
Section 3 of the Act explains the circumstances relied upon by the Court, it includes the financial needs, financial resources, the value of the estate of the applicant, any disability and the conduct, if relevant.
It is very important to note that the limitation period for bringing such a claim is six months from the grant of probate or letters of administration.
The Court’s powers
The Court has a wide range of discretional measures it can take in relation to contested probate. It includes allowing a party to live in the deceased’s property, awarding a lump sum or periodic payments and transferring properties.
Contentious probate matters are often costly in time and funds. Our Solicitors can advise you on what the best course of conduct is and the likelihood of success.
For all the reasons mentioned above and to understand better the rules applying we advise to consult a Solicitor to ensure your wishes will apply once you pass away and that your loved ones will receive what you meant for them to receive. We, at TV Edwards, are available to advise you on the above and draft your Will for you to protect your interest. In addition, we are available if your wish to receive assistance with a contentious probate matter.
Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.