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 Scarle. 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
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.
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