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Does your will cover the ‘what ifs’?

Probate case highlights importance of comprehensive planning

A recent High Court case which decided who should inherit the estates of a married couple who died within months of each other, has brought into focus the importance of drafting a fully comprehensive will which covers various eventualities. The case shows what can happen when a deceased spouse leaves everything to their partner with no provision for what happens to their estate if their partner has already died.

Specialist private client lawyers say a good will should deal with various ‘what if’ scenarios including what would happen if the spouse does not survive.

Carol Cummins, private wealth team leader, said: “This case is the perfect illustration of how a will should make your wishes explicitly clear, rather than your surviving family having to second guess the deceased’s wishes.

“It consequently reduces the likelihood of disputes. The family in this case appears to be a close one but they still end up having to have their disagreements settled by the court.”

The case decided on the distribution of the estates of a married couple Margaret and Alan, who each died within months of each other at the age of 71 in 2019. The couple had no children and each left behind a will appointing the other as the sole executor and sole beneficiary.

When Margaret died of cancer in February 2019, Alan visited his solicitor to make a new will but did not execute it before he died of a heart attack in May 2019. This meant that Alan’s estate, including that which he inherited from his wife, passed under the laws of intestacy to his next of kin, namely his brother, sister and nephews.

The dispute arose when Margaret’s brother and sister claimed the couple made “deathbed” gifts to them before they died, but Judge Jarman QC ruled that the purported gifts did not meet the definition of deathbed gifts and, as Alan had not updated his will following his wife’s death, his entire estate was distributed according to the law of intestacy because his will did not provide for what should happen if he died after his wife.

Carol continued: “A good will should deal with any number of ‘what if’ scenarios. The likelihood of the sole beneficiary, whether that be a spouse or otherwise, also dying at the same time or shortly after is a big consideration.

“It is really important to deal with this in the will rather than relying on the surviving spouse to make a new will as they might not get around to it quickly enough, as here, or they might lose mental capacity and be unable to make a will.”

Clarke Willmott has recently launched our #GoodWill campaign which aims to encourage people to take steps to safeguard their family’s future wealth by pledging that they will make a will this year.

We have developed a free, online ‘Which Will?’ tool to help people that prompts the user to think about what is important to them when making a will and recommends which will best meets their needs.

Find your Will


Your key contacts

Tom Chiffers


Tom is a Partner in Clarke Willmott’s Taunton Private Capital team, specialising in inheritance tax and succession planning for private individuals, farmers and other business owners.
View profile for Tom Chiffers >

Carol Cummins


Carol enjoys long term relationships with her clients and likes to get to know the families well so that she can help them at each key step in life with a focus on protecting the family wealth from erosion by tax and outside claims so it remains in the family for future generations.
View profile for Carol Cummins >

Paul Davies


Paul is a Partner and head of the private capital team in Clarke Willmott’s Manchester office. Paul specialises in estate planning, Wills, & trusts for clients with complex family and finance arrangements.
View profile for Paul Davies >

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