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The most important document you will every sign?

by David Endicott, Spratt Endicott Solicitors | May 01, 2011
Recent statistics indicate quite clearly that fewer and fewer couples are marrying, preferring instead to live together. This has caused a number of issues which the Law Commission are now reviewing particularly relating to the disposition of the estate of one of the partners when he or she dies. Although not massively up to date the Intestacy Rules work to a limited extent for married couples and those couples in a civil partnership, but they do not impact at all on cohabitees.

The answer is to make a Will. That really does solve the problem because then the cohabitees can leave their respective estates to one another, if there are children of the relationship then those children can be catered for, guardians appointed, trusts created and so on. The Will does not have to be complicated nor does it have to be expensive but it can resolve a multitude of problems.

The difficulty is that where unmarried people cohabit and one of them dies, the survivor has no claim on the deceased’s estate save for two possibilities. Both of these arise under the Inheritance (Provision for Family and Dependants) Act 1975. The first proviso that may assist is that if the person dies and immediately before their death they are maintaining somebody else, then that somebody else has a claim on the estate. That would not apply if the survivor in the relationship was working and independent.

The other perhaps more pertinent proviso was introduced some years after 1975. It provides that if two people live together “as husband and wife” for more than two years, then on the death the other has a claim against the estate. It is not particularly satisfactory, any claim under the Act apart from a claim by surviving spouse is for maintenance only, and although the maintenance is generally capitalised, proceedings can be expensive and traumatic.

If you make a Will and then get married, the Will is revoked automatically on marriage unless it is made in contemplation of the marriage. Generally speaking marriage revokes a Will. However, divorce does not, it merely shifts the pieces. Thus if your Will appoints your husband or your wife as an Executor and leaves them all or part of the estate, then once the Decree Absolute is pronounced that appointment and those benefits fall by the wayside, simply because you are no longer husband and wife. The sensible thing is to either make a Will or change your Will during the course of the matrimonial proceedings. If your spouse has run off with the milkman or the barmaid and you get hit by the proverbial bus before the decree is absolute then surviving spouse may take your estate under a Will, and so it is best to deal with all of these issues at the start.

One final plea. A Will is probably one of the most important documents that you will ever sign. Please do it properly. I would urge you not to try and do it yourself, not to go to a Will writing agency, but to instruct a qualified solicitor because in drafting Wills there are often other elements that need to be taken into account and it is my view, and yes I am biased, that only a lawyer can identify those issues.

David Endicott is Managing Partner and Head of Private Capital at Spratt Endicott Solicitors. He has over 40 years experience of Will writing, Probate and other estate planning and related issues. For more information telephone 01295 204000 or email David at dendicott@se-law.co.uk.

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