Simpson Millar LLP Answer Your Contested Probate Questions


This year, the archive that houses Wills has been made available to the public. Anyone can access around 41 million Wills dating back to 1858. A Will is crucial to determining which of your loved ones will get your property when you die, but a recent survey by Will Aid found that almost 50% of adults in the UK don't have a Will. Is this because people just don't realise how important Wills are and what the consequences can be if you get it wrong, or don't have one?

Simpson Millar LLP Answer Your Contested Probate Questions

Our solicitors are on hand to answer some of your questions.

My partner and I are a common law couple, why should we worry about writing a Will?

The law does not recognise common law husbands and wives when it comes to inheriting. People often mistakenly rely on this, and believe that after death everything will pass to their partner. If you are not married and do not have a Will, you could find yourself in a very difficult situation should your partner die. For example:

Gary and Sue are unmarried and in their late 40's, and they have a 20 year old daughter, Katie. The house, which Gary and Sue bought together, is only in Gary's name. Gary dies unexpectedly and as he has no will, all his property goes to Katie, including the house Gary and Sue bought together.

The rules of intestacy (these are the rules which apply if you die without a Will) mean that all of Gary's property goes to his daughter, including the house Sue bought with him. This kind of situation could result in parents having to become involved in a legal battle with their own children for a share of the inheritance.

I fell out with my child and don't want to leave them any money. Is it okay for me to just exclude them from my Will?

Generally speaking, in England and Wales, we have testamentary freedom, that means you can leave what you have to whomever you wish. However, the law expects you to make provision for certain people, for example a spouse, civil partner, minor child, disabled adult, someone who is financially dependent on you, or someone with whom you have lived as husband and wife for two years immediately before your death.

If you do not provide for them in your Will, they can make a claim against your estate. If the claim is successful, they will be given a share of your estate and there will be a substantial legal bill, usually paid for out of the estate.

If you do want to exclude someone, talk to your solicitor, explain why, put a statement with the Will which clearly states why you are not leaving them anything. It may not prevent a claim, but it may help resist one.

Getting legal advice whilst drafting your Will is the best way to avoid possible disputes after your death.

Everything I put in my Will will be followed, right?

Generally speaking, yes, but there is a distinction between something in your will which is legally binding and something which is expressed as a wish, which is not legally binding – a wish is just as wish - nothing more.

You can leave your pet to someone in your Will, but, of course, they don't have to accept it and they can say they do not wish to receive it. You can leave some money to look after the pet, but be careful. Even if you say that the person cannot have the money unless they take the pet, you cannot guarantee that they will honour the gift, that is, they may take the money and not wish to keep the pet. British fashion designer Alexander McQueen left £50,000 to take care of his dogs, guaranteeing them a pretty good life!

You may also want to specify if you would like to be buried or cremated, what kind of service you would like, or what kind of music you want to have played at your funeral. There are occasions when someone wants to say what colours should be worn at the funeral, what kind of wake should be held and where it should take place – Mablethorpe Beach has been named as a popular spot!

The important thing in your Will is to appoint an Executor (that’s the person who sorts everything out when you are gone) who you trust completely, so that you know your wishes will be carried out. Don’t be tempted to appoint someone, just to keep family members happy, which is often the driving force behind deciding who should do this.

I already have a Will, can I just forget about it?

Having a Will doesn't mean you can tick it off your list of 'things to do' and forget about it. Different events in our lives mean that we have to reconsider who we have left money to, and why we might need to amend the Will. Some situations that might mean you need to reassess your Will include:

  • Buying a house
  • Getting married
  • Having children
  • Getting Divorced

If you don’t have a Will, or do have one but it may need updating, it is important to get the right legal advice. Getting the help of a solicitor ensures that the Will is valid and reduces the risk or it being successfully challenged in the future.

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