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Will Warning for Gay Couples

by Ridley&Hall in News posted February 19, 2010.

SAME SEX ISSUES ARISING OUT OF CONTENTIOUS PROBATE

Peter Ikin was a successful executive in the music industry who died on 12th November 2008. Ikin, 62, was the confidante of stars such as Elton John, Rod Stewart and Billy Joel from his days as a boss with Warner Music International. He owned substantial assets and made a Will in 2002 which left his estate to friends, family members and to 3 Australian charities. In April or May 2008 he formed a close relationship with a much younger man, Alexander Despallieres. Despallieres had allegedly told Ikin that he was an internet billionaire dying from a brain tumour. The couple entered into a civil partnership in October 2008.

After Ikin’s death, Despallieres alleged that his partner had made a Will in his favour in August 2008 (before the civil partnership) – but family members claimed that that Will was a forgery.

Despallieres moved into Ikin’s £3m Chelsea home after his partner’s death and emptied £2m from his Channel Island bank accounts.

The August 2008 Will that Despallieres sought to rely on left everything to him and contained a clause that it “shall not be revoked by either subsequent marriage, civil partnership nor adoption”. After a legal battle in 2009, a Judge found that even if the Will were valid it was revoked by the civil partnership despite the clause in the Will – because the clause was not specific enough. It was just a ‘general statement’ that the Will was intended to survive marriage, civil partnership or adoption. It did not comply with a specific clause of the Wills Act 1837 that requires that someone making a Will should, in those circumstances, make it clear from their language that they: –

1. Expected to form a civil partnership with a particular person.
2. Intended that the Will should not be revoked by that civil partnership.

Despallieres was therefore unsuccessful in his claims and Peter Ikin’s estate was distributed under the intestacy rules.

So – a civil partnership (or a marriage) will revoke a previous Will unless it contains a suitable, and very carefully worded clause.

What many people are unaware of is that when someone dies – whether or not they have made a Will – financial claims can be brought against their estate in England and Wales under the Inheritance (Provision for Family and Dependents) Act 1975 (the Act). Eligible claimants are limited – usually to close family who were financially dependent in some way on the deceased. Despallieres may have been better off bringing a claim against his late partner’s estate rather than forging another Will. It may come as a shock to find out that even if you make a Will your wishes may not be carried out; but the aim of the Act is to prevent injustice often to partners who arguably should be no worse off as a result of their partner’s death than they would have been in the event of a divorce/separation.

If you are in a same sex relationship it makes a difference if you have entered into a civil partnership. Your partner in that situation has exactly the same entitlement under the Act as a married spouse. This means that if they make a claim under the Act they are entitled to ”reasonable financial provision’ whether or not that provision is required for his or her maintenance. It is up to the Court to decide what is reasonable in each case but one of the factors that is taken into account is the “deemed divorce test” ie what financial provision would have been made for them if the parties had divorced rather than one of them dying.

If you have not entered into a civil partnership then your surviving partner is entitled to a lower standard of financial provision “as would be reasonable in all the circumstances of the case for the Applicant to receive for his maintenance”. This can result in hardship and unfairness to a surviving partner, especially where the couple have simply assumed that the surviving partner will inherit everything. In those situations the surviving partner has to cope with the emotional devastation of the bereavement and at the same time take legal advice – often very quickly because once a Grant of Probate is taken out by an executor (the person who administers the deceased’s estate), in some cases there is a non negotiable 6 month period for making a claim. Any claim after that time may be time barred.

How can you avoid leaving your loved ones with a legal battle after your death? First of all consult a solicitor and make a Will. That may sound wrongheaded – why make a Will if it can be challenged after your death anyway? The reason is that judges are very reluctant to overturn Wills because, if they are genuine, they are the deceased’s persons last expressed wishes and so should not be lightly overruled. So if you leave everything to the cat and dog home it’s harder to overturn that than if you simply died without leaving a Will at all; especially if you explain your reasons in the Will or a side letter. Also if you get good legal advice before making your Will you may be able to phrase it or otherwise dispose of assets in such a way so as to – quite legally – avoid or substantially minimise the risk of any legal claim being brought. You may also be able to reduce your estate’s exposure to Inheritance Tax. The current inheritance tax threshold is £325,000 so your estate will be taxed at 40% of any sum over that amount.

This is why I, advisedly, refer to using a ‘solicitor’ rather than a ‘Will writer’. In a recent report in the Law Society Gazette, a published survey revealed that 67% of people think that Will writers are solicitors. They are not. Will writers are unregulated and very often completely unqualified individuals, many of whom prey on the unwary. They may appear cheaper than solicitors but beware – they will often charge hidden fees for storage or reviewing Wills which will in the long term make them far more expensive than a Will prepared by a solicitor who is regulated and expert in this area of law. A final word of warning – if a Will writer prepares a Will negligently, by the time that is apparent they will probably be long gone and will have no insurance, whereas a solicitor will almost certainly be traceable and will have professional indemnity insurance to cover negligence claims.

If you enter into a civil partnership you should both take legal advice about making a Will. Almost certainly any Will made before the civil partnership – unless very carefully drafted – will be revoked by it in exactly the same way as by marriage. A lot of people think that they don’t need to make a Will and that the Intestacy Rules will make sure that their loved ones are provided for. Sometimes that is true, but not always. Much depends on the value of your estate and whether or not you have children. You should also review your Will at least every five years or so, to review any changes in the law and/or your personal circumstances.

A final point to mention; if you have a property in joint names, are you joint tenants or tenants in common? Did you know that if you (like most people) own your property as joint tenants then on the death of the first joint tenant their share of the property passes automatically to the surviving joint tenant? It does not form part of the deceased’s estate. Some people choose instead to hold property jointly as tenants in common. This means that you can dispose of your share in your property by your Will (or intestacy) i.e. it forms part of your estate on your death.

None of us like to think about our deaths – or consider the fact that our financial circumstances when we die may be very different from what they are now – but if we fail to think and talk and plan for these issues, we could leave our loved ones with a financial crisis as well as their grief when we die.

END

For more information please contact Sarah Young, specialist in contentious probate, Partner at Ridley and Hall solicitors Queens House, 35 Market St, Huddersfield HD1 2HL tel DD 01484 558838.

 

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