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Why it is Important to Have a Will and Probate Plan



Applying for probate is usually facilitated through a Will, in which a person will get a Grant of Probate. For this reason, it is crucial to have a valid Will in place, and the recent High Court case of Davey v Bailey [2021] reiterates this point. This case illustrates what can happen when a deceased spouse leaves everything to their partner with no provision for what happens to their estate should the inheriting partner die first.


The case concerned married couple, Margaret and Alan, who died within months of each other. The couple died leaving no children. In 2009, they each made a Will appointing the other as the sole executor and sole beneficiary. When Margaret died of cancer in January 2019, Alan visited his solicitor to make a new Will but, unfortunately, he died of a heart attack in May 2019 before getting the chance to sign it. As a result, Alan’s estate, including that which he inherited from his wife, passed under the laws of intestacy, namely to his brother, sister and nephews. Margaret’s siblings were entitled to nothing. A dispute arose when Margaret’s brother and sister claimed the couple made deathbed gifts to them before they died. Ultimately, Judge Jarman QC ruled that the purported gifts did not meet the definition of deathbed gifts, and as Alan had not formally updated his Will following Margaret’s death, his entire estate was distributed according to the law of intestacy because his Will did not provide for what should happen if his wife predeceased him.


This case is a prime example of how a Will should make your wishes explicitly clear, rather than leaving your surviving family to second guess or make assumptions as to your wishes. It is vital to make alternative provisions in your Will rather than relying on the surviving spouse to make a new Will as they might not get around to it quickly enough, as here, or they might lose mental capacity and be unable to make a Will. Having a Will reduces the likelihood of disputes. A good Will should deal with any number of ‘what if’ scenarios. The likelihood of the sole beneficiary, whether that be a spouse or otherwise, also dying at the same time or shortly after is a big consideration.


If the will does not provide for what is to happen if the inheriting partner is no longer living, and the estate is consequently distributed according to the intestacy laws, the opportunity has been lost to put in place inheritance tax efficient provisions, perhaps to include trusts for the wider family.


Protection of younger beneficiaries is also an important consideration. Under the intestacy rules minor beneficiaries become entitled to their share of the estate at 18 years of age. However, most parents generally prefer for children to inherit when they are older, for example when they reach the age of 21 or 25 years.


Further, couples with no children or grandchildren often wish to benefit both sides of the family from their combined estate on the death of the survivor and this needs to be dealt with through their Wills as the intestacy rules will only benefit the family of the person who died last.


Contact us today to get your Will and Probate Plan in place and give your family peace of mind knowing that they are honouring your wishes.

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