Making a Will

It is self-evident that after death you can no longer personally manage, control or direct the destination of the assets you have so painstakingly acquired during your life or who is to benefit from what remains of them. Neither is it possible for you to personally have any direct input in the upbringing of your children.

If on death, which comes to us all and sometimes when we least expect it, you leave a valid will, it is possible at least indirectly to influence such matters. If you leave no valid will you are said to die intestate and these matters are decided in the main by the state, which is what few would wish and which sometimes has disastrous consequences. By making a will you will have more control over these and other matters and the flexibility which a will gives will bring peace of mind as to what will happen after your death.

The laws of intestacy do not rank highly on the political agenda and were mostly enacted in 1925. Only occasional and piecemeal revisions have been made since that date. The result is that they are out of date and unsuitable for British society in the twenty-first century in which marriage to a lifetime partner is no longer the norm.

In brief, in the case of death without a valid will, who inherits and deals with the winding up of what you leave (known as your estate) depends upon the size of your estate and what relatives, if any, survive you, and these are both matters of chance. If no relatives within a prescribed degree survive you, the Crown or the Duchies of Lancaster or Cornwall will inherit and wind up your estate, which is something that most people would wish to avoid. Moreover, it is more likely that it will be possible to trace those entitled under your will than to trace perhaps long-lost relatives entitled under the laws of intestacy.

Other problems can arise if you do not leave a valid will:

• If the value of your matrimonial home is high in proportion to the total value of your estate and children or sometimes some other relatives survive you, your spouse might be compelled to sell the matrimonial home to pay out the children or relatives. Similarly if your spouse dies intestate, you might be compelled to sell your home or other assets to pay out the entitlement of in-laws who might be people you tolerate rather than like. If you or your spouse die intestate, you cannot rely upon your children, relatives or in-laws, who might have the kindest of intentions towards you, permitting your spouse or yourself (as the case may be) to remain in the matrimonial home; their hands may be forced by their matrimonial or business problems and they may have no alternative but to compel you to sell property and claim their share of the estate immediately.
• If your marriage has broken down but no decree absolute of annulment or divorce has been pronounced at the date of your death, then under the laws of intestacy or under a previous will which you may not have revoked, depending upon the circumstances of your particular case, your surviving spouse might inherit the whole or a share of your estate which is totally inconsistent with your wishes.
• If you are a person with a cohabitee (partner) with whom you have set up home and you die intestate, your partner has no automatic right to inherit anything from you unless your partnership has been registered under the Civil Partnership Act 2004 and to inherit must make a prompt application to, and rely upon the tender mercies of, a court.