The problem of Intestacy

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    The ongoing problem of intestacy is constantly in the news, normally when it effects a celebrity or their family. Even in these cases the hardship and suffering caused by inadequate provisions are plainly demonstrated.

    In the news recently actress Taryn Dielle has found herself in the bizarre situation of bringing a claim against the £2.2 million estate of her late husband Mark Butler. Mark’s Will was found to be invalid as it only had one witness.

    His estate therefore passes under the intestacy rules (at the time of death the statutory legacy was just £125,000). The intestacy meant that a large amount of inheritance tax was payable on the estate and his wife was inadequately provided for and is having to claim under the Inheritance (Provision for Family and Dependants) Act 1975.

    Often when intestacy happens unintentionally it is possible for the wife and children to and sign
    a Deed of Variation which redistributes the estate and avoids hardship for the surviving spouse.

    However in this case, the children are both minors and cannot consent to a Deed. The result is a very expensive court action by a mother which is effectively against her children.

    A different problem was reported for the family of Robert Dunlop, the racing driver who was killed in a crash last year. Robert had quite clearly told his wife that he had left a Will and
    written down details of his funeral wishes but she didn’t ask him where they were. It’s now
    more than a year since his death and his Will still hasn’t been found. In the meantime, nobody can access any of the funds in his estate. Highlighting not only the importance of making a Will but also ensuring it is stored securely and people are notified of its whereabouts.

    The Law Commission will be using these examples and others in its review of the laws of intestacy. They were recently cited as stating that “Intestacy and family provision are important areas of the law affecting a large number of families at times of financial and emotional vulnerability”.

    Research by the Commission shows that the intestacy rate is currently 30-40% throughout the UK.

    They expect to produce a consultation paper later this year and a report and Draft Bill produced in late 2011.

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    Matt Walkden Will Writer

    About Matt Walkden

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