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Case Study: Why it’s important to have a will / Why it’s important to have your will up to date

As much as we estate solicitors ‘harp on’ about the importance of having a will, or having an up-to-date will, it’s actually not because we’re bored and seeking work – it’s because of the all too real situations we come across when we see things go wrong.  So rather than bore you with some ‘never-going-to-happen-to-me’ hypothetical, here is a real story from a recent matter we have had, and the real consequences of this situation.

A woman had recently passed away unexpectedly in a car accident.  Her brother came to see us, because he wanted assistance in resolving the estate, as well as advice concerning the initial situation.  You see, when she died, our client’s sister was still married – although separated from her husband for about a decade or so.  They just never bothered with the formalities of getting a divorce, and went about their separate lives.

After initial searches, no will was able to be located.  This meant that intestacy rules applied to the estate, and so statutory rules applied to determine who would be beneficiaries of the estate.  The deceased did not have any children, and was survived by her (long-since-separated) husband.  Under the intestacy laws, her husband would receive the entirety of her estate – even though they had been separated and had no relationship for 10 years.  We considered making enquiries about asking this husband to ‘give up’ his entitlements in the estate – but this would have relied entirely on the goodwill of the husband, and he was under no obligation to give up those entitlements.

Of course, having a will would have avoided this whole scenario, with the deceased’s will being able to specify who would receive the entitlements in the estate.  Just a few days before the accident, the woman had told her brother that she’d made a will – the only problem was that it couldn’t be found.  The last that anyone could ascertain, there may have been a will made by the deceased herself, and it probably was amongst her personal possessions. The next legal problem was that, if a will exists and is kept in the possession of the deceased person, but that will cannot be found after death – then the law presumes that the will was destroyed, with the intention of revoking the will – and so returning us to the starting position of an intestacy, which would mean that everything would pass to the husband.

Thankfully, after a few months of searching, our client obtained an original will of his sister from her friend.  Success!  We now had a will, and had even located the original will (which is important for estate administration matters).  At this point, a further problem was unfortunately identified – the will stated that the original will was signed in triplicate.  Surely that’s just being over-cautious, why would this be a problem, you may wonder?  Well, signing the same will 3 times doesn’t necessarily mean it’s a will signed in triplicate.  In this instance, each will contained a provision at clause 1, “I revoke all previous wills made by me.”  So, despite the best of intentions, our lady unfortunately didn’t sign her will in triplicate; she actually made 3 wills on the same date.

The result of all of this? When it comes time to ‘prove’ the will – that is, obtain a grant of probate from the Supreme Court – rather than following the ordinary and relatively straightforward process for addressing these matters, we instead had to address all of the above matters and explain the situation, with supporting evidence, to convince the Supreme Court that our lady had, in fact, died with a valid will – although we couldn’t say for certain which of the 3 original wills signed on the same date was her last will!

As you’re probably gathering from the above, the lady’s actions, taken with the best of intentions, resulted in a complicated court proceeding to explain the series of unfortunate events to a court, with supporting evidence, in order to convince the Supreme Court of the validity of the will and to make a grant of probate.  As it wasn’t a straightforward process, this unfortunately meant that it was a more costly exercise than the standard, uncomplicated procedure to obtain a grant of probate, as well as the consequential delays, uncertainties and anxieties resulting from the comedy of errors.

It’s scenarios like this that estate lawyers see, all too frequently, that cause us to constantly echo the mantra of why it’s:

  1. Important to have a will in the first place (so you can ensure your estate goes where you want it to); and
  2. Important to have an up-to-date, valid will (so you can avoid complications, which usually lead to increased complexity and otherwise unavoidable legal costs).

So really, estate lawyers are shooting themselves in the foot by telling you to ensure your will is up to date.  Getting a will done is an upfront, but small payment, compared to the costs to your estate if your will isn’t up to date and valid!

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