Why you should have a lasting power of attorney
In this insight article, we will explain the importance of having a lasting power of attorney (LPA), the different types available and when they can be used.Read more
The High Court has recently presided over a battle about who would inherit the assets of John and Ann Scarle of Leigh-on-Sea. When John and Ann married, they both had children from previous relationships – this is key.
The main asset of their estate is a £300,000 house. Anna Winter (daughter of John) believed that she was entitled to inherit the house in its entirety, whilst Deborah Cutler (daughter of Ann), believed she should inherit the house in its entirety.
John and Ann had both passed away from hypothermia in tragic circumstances at their home sometime between 3-11 October 2015. It appears that no one will ever really know what led to their passing, but the property was found in a poor state and had been targeted by vandals, the windows being broken and the door left open.
It seems neither had written a will, so their estate would have to be dealt with by the rules of intestacy. However, how that happens depends largely on who died first.
Under the Law of Property Act 1925 where two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall, for all purposes of affecting the titles of property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.
This meant that, on a bare reading, John Scarle, who at 79 years old was 10 years older than his wife Ann, died before his wife and therefore his assets, according to the rules on intestacy, passed (even if for the briefest of minutes) to Ann. Upon Ann’s passing, the assets would then be distributed to her family (i.e. Deborah and her brother Andre) according to the rules of intestacy.
However, this presumption can be defeated if it can be shown, on the balance of probabilities, that Ann died first. Anna put forward a case that Ann probably died first, basing her submissions on the state of the body when the police found Mr and Mrs Scarle.
In the end, the trial judge decided that the presumption of death (i.e. that the eldest died first) could not be defeated. Anna did not have sufficient evidence to show that Ann had died first. The court, therefore, determined that John passed away first, then Ann and, as a result, the assets passed under the rules of intestacy to Deborah and Andre.
This case would have been expensive to run – in fact Anna has been ordered to pay £179,000 in legal costs to Deborah.
Had John and Ann Scarle agreed who would inherit their assets on their deaths by drafting wills, it may have saved a very expensive court battle, which will have substantially diminished the estate’s value. Proceedings may have still been issued, but if the Scarles had left properly prepared wills, there would have been certainty as to how the estates should be dealt with and it is less likely that any litigation would have ensued.
A will is an important document, yet research shows that over half of the UK’s adults do not have one in place.
Some people believe that they do not have any assets to give and what they do have will pass to their partners or children.
It is especially problematic where stepfamily is involved or families have been ‘joined together’. The partners may want their shares of the assets to pass to their children rather than their stepfamily.
Mirror and mutual wills are wills drafted by two or more people. They are often used by couples and partners as a way of confirming that they both agree on what should happen when the last one passes away. They look almost identical in content.
In the case of a mirror will, once one individual passes away, the survivor is entitled to make a new will, which can be completely different from the previous one.
This can be avoided by agreeing mutual wills, limiting the survivor’s ability to make a will in different terms, which, in essence, bounds them to keep their will as it was at the time their partner’s will was executed.
We also recommend having a survivorship clause within your will to ensure that property only passes to a beneficiary after a certain period. If the beneficiary passes away before that time, the estate passes to other beneficiaries.
A disaster clause can be put into your will to determine where your estate would end up if you and all your beneficiaries die at the same time. In a rather famous case, Richard Cousins, who was tragically killed along with his family in a plane crash in Sydney in 2017, had a disaster clause within his will. As a result, Oxfam was bequeathed £41m from his estate.
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