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Making a Will: Why you shouldn't rely on instestacy rules

Making a Will: Why you shouldn't rely on instestacy rules

Abigail Hart

“Please write my Will.  I’d like my wife to get my personal possessions, plus a cash gift of £322,000, plus half of anything left over.  My children (from every relationship that I have ever had in my life) should get the other half of the leftovers equally. 

I really don’t care whether we include my house and/or some/all of my bank accounts.”

You can’t take your wealth with you when you die (the wealthier of the ancient Egyptians tried).  Someone must inherit and if you don’t leave a Will, the decision is made for you by the Intestacy Rules, found in Section 46 of the Administration of Justice Act 1925   Not much law relating to Wills is modern and the Intestacy Rules are no exception.  Based on a survey of probated Wills in the early 1920’s, they share out an estate depending on which family members are alive to inherit.  If there’s really no widow or blood relative, the Crown inherits, bona vacantia (vacant goods).

In the example above, the Intestacy Rules share out an estate between the widow(er) and children.  This covers a range of situations, from the so-called nuclear family to second marriages (or beyond), where the widow(er) isn’t necessarily the parent of the children and the children may have one parent in common but not necessarily the second.  It covers Civil but not unmarried partners. 

Unsurprisingly, no married Client of mine has ever asked me for a Will in these terms.  The details of the Intestacy Rules have been tweaked and updated over the years (the last update was very recent) but the basic structure still remains and sometimes the outcome is undesirable.  It’s a fair attempt but one size can’t possibly fit all. 

  • For the families of late homeowners, it does matter whether or not the house is included in the calculations. Ditto the joint bank accounts.
  • There are geographical disparities:  £322,000 buys significantly more away from London and the South East. 
  • All adult children are equal but there are times (eg inheritance) when some should be more equal than others.  They may have different needs because of vulnerability or disability or perhaps one should be rewarded for staying at home to take on the lion’s share of the caring role. 
  • For close friends who are not sufficiently close blood relatives, it does matter to be left out of inheriting whilst the great nephew in Australia who hadn’t been in contact for decades receives an unexpected windfall.  
  • Where the estate is inherited by more distant family such as cousins (the descendants of the parents’ many siblings), a lot of people receive a little at great expense and inconvenience.

Better bespoke.  Better to bite the bullet, consider how your nearest and dearest would manage without you and have a professional Will drawn up that provides for them as best you can.  It’s not expensive.  If there is no one obvious to leave your worldly goods to, charities depend on gifts in Wills to carry out their work and they will make better use of your wealth than the grandchildren of long lost cousins or the Crown.  The main point is that you cared enough bother with a Will.