Wills and Estate Planning: Beware of complacency!
22 January 2015
As a private client practitioner, I hear various reasons as to why clients may have put off making a Will. They may find the thought of it morbid, or perhaps even think it is tempting fate. Others may want to do it, but simply haven’t got round to it yet.
However sometimes I hear comments such as “I don’t own enough to bother making a Will...” or “Sure, everyone knows who I want it all to go to anyway...”. To anyone thinking along these lines, I would urge you: don’t be complacent.
Where an individual dies without a Will, this is called intestacy, and there are strict rules as to how the estate is administered, found in the Administration of Estates Act (NI) 1955. Broadly speaking, it will be the next of kin who is entitled to administer the estate, and there is an order of priority for who should inherit, depending on the size of the estate, whether or not there is a surviving spouse, children etc.
It is in this scenario that an unmarried partner or cohabitant can be particularly vulnerable. Occasionally one might hear reference to a “common law husband/wife”, but in fact, there is no such standing in law. There is no provision for an unmarried partner within the intestacy rules, and they do not have the authority to extract a Grant of Representation in order to administer the estate. This will be the duty of the next of kin. Any assets owned in the sole name of the deceased will form part of his or her estate to be distributed in accordance with the order of priority, even if the beneficiary is a family member with whom the deceased had a poor relationship, or no relationship at all. Inevitably such circumstances will contribute to a degree of administrative delay, which can only add to the pain suffered by those involved.
Whilst an unmarried partner may be able to bring a claim under the Inheritance (Provision for Family and Dependants) (NI) Order 1979, the claimant must show that they were being maintained by the deceased during their lifetime, and any award on a successful claim will be limited to their ongoing maintenance.
Of course the best way to avoid these difficulties is to take good professional advice and prepare a properly drafted Will. In this way, one can appoint trusted individuals to administer the estate and can direct how the estate is to be distributed.