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The Challenges of Intestacy

Posted on 23rd March 2021 in Probate & Wills

Posted by

Naomi Hoare

Senior Associate & Solicitor
The Challenges of Intestacy

The challenges of intestacy - who inherits if someone dies without a Will?

A recent High Court case has highlighted the challenges faced when a person dies intestate, or when a Will does not cover a number of scenarios, such as what should happen in the event of the unexpected death of a beneficiary.

The case in question involved the estates of a married couple who both passed away within a short period of time. The couple, Margaret and Alan, died within months of each other at the age of 71 in 2019. They had no children and each left behind a Will appointing the other as the sole executor and sole beneficiary.

After Margaret had passed away, Alan visited his solicitor to update his Will but, unfortunately, he then died before it was executed. As a result, Alan’s estate passed under the rules of intestacy, meaning all his assets, including those he had recently inherited from his wife, passed to his next of kin, in this case his sister, nephews and brother.

Margaret’s brother and sister claimed that the couple had made deathbed gifts to them - a type of gift made in contemplation of death which means that the subject of the gift passes to that beneficiary on the death of the person making it and not to their personal representatives. The matter went to court where the judge ruled that the purported gifts did not fall withing the definition of deathbed gifts. As a result, Alan’s entire estate passed under the rules of intestacy to his own family members and none to Margaret’s.

What this highlights is just how important it is to include provisions which deal with a number of different ‘what if…’ scenarios in a Will. By including back-up provisions in a Will, and considering what should happen if beneficiaries die within a short time of each other, it takes away some of the urgency of making changes after an event like the death of a beneficiary has taken place and avoids a situation like this coming to pass.

Unfortunately, this scenario looks set to be played out again, as in spite of lockdowns creating a spike in the demand for Wills last year, two out of three adults in the UK still do not have a Will in place.

If making or updating a Will is something that you are considering, or you would like some help or advice, then visit our dedicated Wills hub, or contact our expert team.

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