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Is your will really valid?

4th August 2020

We have flagged several times the importance of having a valid will to avoid the backstop position of the application of statutory intestacy rules (England and Scottish rules differ) 

See our earlier article on intestacy.

Intestacy usually arises when a will has not been left at all, but can also occur in other situations for example:

  • The will is prepared but not signed or witnessed
  • The will had not been updated following a marriage breakdown, with the ex-spouse being the sole or residual beneficiary
  • A will had been made before and without contemplation of a marriage

Partial intestacy

Very few people are aware that it is also possible for partial intestacy to occur even if a valid will has been executed. This can happen when the will for some reason does not deal with the whole of the estate.

An example could be where a will leaves an estate split to several beneficiaries. If one of those beneficiaries predeceases the will writer and there is no provision for this to happen in the will (e.g. no alternative beneficiary or split, nor a residual beneficiary who receives the remainder of the estate), then this particular element of the will will fail and fall into intestacy. 

Another example could be where an asset held does not have provision in the will. It is important to note the rest of the will is still valid and the remaining bequests should be distributed in accordance with its terms, but any elements that fail will have the rules of intestacy applied.

This means that significant value could go to family members with whom there is a dispute, or that you have never met. The costs of tracking down such members could be significant and is likely to impact on other beneficiaries, not to mention delaying distribution of the estate.

In most cases of partial intestacy, the deceased had not sought legal advice in preparing their will.

Often, the issue could easily have been avoided by having a simple provision redistributing a beneficiary’s share in the event of death, passing to the next generation, a residual beneficiary, or a provision for a charity to benefit.

It is another reason to ensure you regularly review and, if needed, update your will. 

We would recommend wills are reviewed a minimum of every five years.

They should also be reviewed in the event of the death of a beneficiary, or where there are significant changes to life circumstances (primarily divorce and marriage), or assets owned.

If you would like further advice on this area, a review of your will or inheritance tax exposure, please get in touch with your usual contact at Bishop Fleming, or a member of the probate team.

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