A recent high profile case (Scarle v Scarle) has shown the importance of succession planning, particularly in cases of second marriages or cohabitation where a joint approach should be considered.

The case involved the warring families of a husband and wife, Mr and Mrs Scarle, who sadly both died from hypothermia. The couple each had children from previous relationships. It could not be established who of the couple died first. In such cases, there is a little-known rule that the eldest is presumed to have died first – in this case Mr Scare. Because the couple owned most of their assets jointly (their house and bank account), these passed by the rule of survivorship (last one standing) to Mrs Scarle.

This may not have been a problem apart from Mrs Scarle’s Will left all of her money, possessions and property (known as her estate) only to her children, nothing to her step-daughter. The position would not have been much better if the judge had decided that Mrs Scarle had died first, as all the jointly owned assets would have passed to Mr Scarle, who did not have a Will. If you don’t leave a valid Will, the law decides how your estate is passed on under a set of rules, called the rules of intestacy. Under the rules of intestacy, all of his estate would pass to his daughter, with nothing to his step-children.

How could this family dispute (and the significant Court costs) have been avoided? The couple could have owned the family home as ‘tenants in common’ instead of joint tenants. This would mean that each of their share of the house would pass onto each of their families under the rules of intestacy. More importantly, they could have both made and updated Wills.

It is estimated that in the UK around 54% of adults do not have a Will. In reality it may be substantially more than this who may not have a valid Will due to drafting issues, potential deaths in the family or marriages (which automatically revoke a Will made previously).

The rules of intestacy set out a specific order in which blood relatives may benefit – and this can be problematic for unmarried couples or stepchildren who do not get anything under the rules. Legally, there is no such thing as a ‘common law marriage’. If you are not married or in a Civil Partnership, your partner (no matter how long you have been or lived together) will get nothing under the rules of intestacy. Furthermore, if there is no-one within the specified categories set out in the rules, your estate goes to the government.

It can also be problematic for married couples or civil partnership with children, as it is not a given that everything will pass to the spouse or civil partner. In certain circumstances, an amount of the estate will also pass to any children, which can be an issue if the main assets are property rather than money.

A Will is one of the most important documents anyone can make. It lets people know what you want to happen to your estate after you die. A Will can be quite a straightforward and simple document but must be made in line with certain formal requirements to be valid. As well as considering the problems that can happen if you do not have a valid Will, there are many benefits to a Will to also think about. These can include:

  • Appointing trusted people to deal with your estate;
  • Guidance for funeral arrangements;
  • Providing for the choice of the guardians of any minor children;
  • Protecting the position of children from a current or previous marriage;
  • Protecting the position of someone who is vulnerable or may not be good with money or is in receipt of state benefits;
  • Some elements of tax planning.
Read more on making a Will after a brain injury

Making a will after suffering a brain injury

This article has been produced by Francesca Tubb Solicitor at Ashtons Legal

Brain Injury Group member firm Ashtons Legal represent Clients nationwide following brain injuries.

Ashton Legal’s Medical Negligence team are nationally recognised and have been ranked as top tier consistently for over 20 years by independent sources such as The Legal 500 and Chambers UK.

LAWS – providing initial free legal advice

Legal & Welfare Service (LAWS) online for brain injury help, advice and support

What is the Brain Injury Group?

Brain Injury Group is a free service designed to connect those affected by a brain injury (whether there is a claim or not) to a range of experts who may be able to offer advice and assistance.

If you’d like to find out more about the work of Brain Injury Group, you are at the right place! You can follow the links below to:

The Brain Injury Group exists to support individuals and families affected by brain injury and the health and social care professionals working in this specialist field. Our mission is to provide anyone affected by brain injury with access to advice on legal, financial and welfare benefit issues delivered by proven experts in the field who have been chosen not only for their skills and knowledge, but also for their passion and dedication to helping people.

As well as providing legal and welfare advice, Brain Injury Group provide training for legal, health and social care professionals. View our award winning Brain Injury Group brain injury training events.

The Brain Injury Group brain injury directory

The BIG Brain Injury Services Directory

How can Brain Injury Group help you?

If you would like advice about bringing a brain injury claim, capacity, deputyships, managing the award of compensation or any other aspect of brain injury welfare, legal or financial advice, we have specialist brain injury solicitors and Court of Protection solicitors who can assist.

You can find full details of Brain Injury Group members on our website or there are several ways to get in touch:

  1. Call us on 0800 612 9660 or 01737 852203
  2. Email us at [email protected]
  3. Complete this short enquiry form and we’ll get back to you
  4. Find a specialist brain injury solicitor near to you