The law in England and Wales really does allow a lot of flexibility when it comes to making your will. However, there are also classes of people who must be provided for and if you fail to make provision for them in your will they have every right to challenge your estate.
The recent case of Singh highlights this issue very well. Mr and Mrs Singh were married for over sixty years and Mrs Singh had worked in the family business for decades. The couple had six surviving children, two boys and four girls. Mr Singh decided to leave all of his estate to his two sons and nothing to his wife or daughters. This is very common in the Sikh community and is often the way of dealing with an estate.
However, when Mr Singh died Mrs Singh challenged his will as is her right in this country. His estate was worth £1.2 million and Mrs Singh was awarded half as a spouse. As far as the court was concerned, sufficient provision had not been made for her.
I would also expect a local authority to challenge a will like this if a surviving wife did not have sufficient money in order to pay for care home fees. A family may wish to have an older relative living with them in order to care for them at home. However, if there is late stage dementia or numerous other severe ailments it can often become impossible for family members to cope and thus their mum or aunt may need to go into a home.
In another case, a man in his early forties died. Unbeknown to everyone other than his brother, he had had a child with someone as a result of a short lived affair. He had been in a long term relationship at the time. The secret child was his only child. At the time of his death he lived alone having separated from his Cohabitee some years previously.
His family stepped in to claim his estate, he had no will and his mother was his next of kin. As you would imagine his family started to deal with his house, they gifted his car to a relative and distributed personal items. They then sought the help of a solicitor in order to deal with the Administration of the Estate. Were there any children asked the solicitor. No said the mother, yes said the brother but he had nothing to do with the child so the estate doesn’t go to them.
The mother was left to get over the shock that she had a grandchild but also that she had just lost her son’s estate to a stranger.
You might think that these two cases are rare events, but they are not. Our Wills and Probate team deal with these types of issues every day. Most importantly when we are helping clients to draft their wills. If either of the above men had been our clients then we would have confirmed to them in writing the dangers of not leaving anything to their wife or child. Even if the the second man had written a will he could not entirely exclude a dependant child. Whilst he didn’t provide for his child financially he should have done. Therefore that child could make a claim against his estate. Dependant children can also be over the age of 18, students for example or with a physical or mental disability.
Is it really your intention to leave your family fighting over your estate? These cases can cost over £10,000 each in legal fees. Why not take proper advice instead. After all, if Mr Singh had distributed his estate in a fairer way his sons may have inherited something.
www.emmersons-solicitors.co.uk
