“Remember, Remember! the fifth of November” are words indelibly etched on my mind. On that night in 1975 my parents were killed in a road accident just outside Cambridge leaving my younger brother and me orphaned.
Like many people in their early twenties our parents thought they were invincible and certainly too young to write wills. Their assets were modest and having wills drawn up disposing of their assets and appointing guardians for us would probably never have crossed their minds.
Don't leave behind a tangled mess
Yet our parents’ failure to leave wills – especially on the guardianship front - left behind a tangled mess. Our grandparents on both sides embarked on a lengthy and expensive legal battle all the way to the High Court for what was then called 'custody'. Custody was eventually granted to our maternal grandparents and they were appointed our legal guardians. However, a bitter rift ensued between both sets of grandparents which regrettably took many years to heal.
Our paternal grandparents assumed that our maternal grandparents (as our legal guardians) would have sought damages from the insurance company of the driver who caused our parents’ deaths. My brother’s and my eighteenth birthdays came and went. Not wanting to seem acquisitive or ungrateful, we chose not to broach the issue of damages with our guardians. Our paternal grandparents suggested that these were probably being held on trust until we both reached twenty one and urged us to visit the solicitors who had acted for our guardians. Eventually we did, only to be informed by the solicitor that no claim had been made, and it was now too late to do so. Our grandparents had doubtless been worn down with legal proceedings for custody and concluded it was in the best interests of all to 'get on with life'. Of course we were disappointed but, fortunately, the love, care and attention given to us by our grandparents prevented any resentment.
Not having a will is not cool
I hope I have shown from my own experience that refusing to contemplate one’s mortality and ignoring the duty to write a will is certainly not cool. It can cause anguish, bitterness, impoverishment, and huge stress a mess for those left behind. Many of us seem to think a will can be postponed until we reach the autumn of our lives, when there will be plenty of time to put our affairs in order. However, according to The Office of National Statistics roughly 60% of us die intestate, i.e. without ever having made a will.
In England and Wales we have the legal principle of 'testamentary freedom'. This means that we can leave our money to whomever we please and yet the majority of us choose not to. Instead, most of us will rely on the rules of intestacy where, in effect, the state steps in and writes a will for us. The rules of intestacy in England and Wales changed on the 1st October, with the coming into force of the Inheritance and Trustees' Powers Act 2014. Yet there is widespread ignorance of the intestacy rules which can cause terrible distress.
Who will get your assets? Take control
Too often we rely on the assumption that if one partner in a relationship dies intestate, the survivor gets everything. Let us be clear. The law here has not changed - if you are not married or not in a civil partnership, your partner receives nothing. There is currently no legal recognition of 'common-law' partners in English and Welsh law. Without a valid will the surviving partner would have to appoint solicitors to initiate costly and uncertain legal proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 without any guarantee of success. The surviving partner would have to argue some form of dependency on you meriting financial support from your estate. Let alone the prohibitive legal expense, this exercise would cause him or her further unnecessary trauma alongside the grief of losing a loved one.
If you die intestate and are married with children, then the surviving partner receives a statutory legacy of £250,000. However, if your estate is worth more than this, your partner effectively forfeits control over the remainder. 50% of this residue goes direct to your children (or is held in trust until they reach the age of 18) with the remaining 50% going to your partner. Would your children be mature enough to handle a substantial amount of money at eighteen? If your family home is worth more than your spouse's statutory legacy of £250,000 then it may have to be sold to satisfy your children claims on your estate. This poses particular problems in second marriages where children are sometimes loath to show goodwill towards a step-parent.
The surviving partner of a childless marriage or civil partnership now receives the whole lot. However, if you are in a second or third marriage would you wish your partner to receive the whole estate?
If you are single and have no children, would you really want your estate to pass – per the intestacy rules to your parents? Would you want half of your estate to go, say, to a father who walked out on you and your mother as a child and with whom you have had minimum contact since?
Don't delay making a will
Unlike many countries (including Scotland), we do not have forced heirship whereby the law compels us to leave a percentage of our estate to our spouse and children. It is surprising that government intervenes in so many areas of our lives and yet largely allows us freedom in disposing of our estates on death. The sad truth is that the only person unaffected by the failure to write a valid will is the person who dies. If you really care about those close to you, then for goodness’ sake don't postpone making your will!
For advice on making a will, contact wills solicitor Karl Dembicki in Cambridge.