You may find it hard to believe but it’s true – sometimes despite having a valid Will, your wishes can be ignored. How can this happen?

If:

1)  You make a valid Will,

2) Your estate is administered properly,

3) No one makes a claim on your estate, and

4) There are no hidden debts for your estate to pay;

You would assume that your last wishes will be carried out.  Sadly, this is not always the case.  Two of the most common reasons why this is so are discussed below:

Mirror Wills

When you make what’s known as a Mirror Will, you usually do so, but not always, with a partner.  The terms regarding what happens to the residuary estate, that is the value of the estate that is left over following payment of specific legacies and debts, mirror the terms of the other partner’s will. Usually, the provision will be for the estate to be distributed to the other partner and if that partner pre-deceases them, the residuary estate passes to other beneficiaries agreed by both partners.  Commonly, in practice, what that means is that an agreement has been reached between the two partners that their estates are passed to the other firstly and then once the survivor dies the estate is passed on to their children.

But the problem is that the survivor does not have to stick to the agreement and can change their Will after the partner dies.  There may be a whole range of reasons why the surviving partner departs from the agreement, but what can happen is that the survivor starts a new relationship with someone else, and their priorities change, and they decide to leave their estate (including the estate that passed from their original partner) to the new partner, and not to the children. It should also be noted that marriage invalidates a prior Will so if the survivor re-marries but still intends to honour the agreement with the original partner, the effect of the law is that if no other Will is made, after a re-marriage the estate (again including the estate that passed from the original partner)  will pass to the new spouse under the intestacy rules (pre-set rules that apply when no Will is deemed to have been made).

We can not emphasise enough how common it is for a surviving partner not to honour the agreement.  They are not legally obliged to do so.  The effect of them not doing so is that your estate may not pass to those you wished it to pass to ultimately and may even pass to people you positively did not want it to pass to or people you don’t know.

It is understandable that you trust your partner/spouse will honour the agreement. But we would urge you strongly to take advice on your options when making a Will.  Our Wills & Probate team would be happy to assist you.

If you were named as a beneficiary to the residuary estate in a Mirror Will but the Survivor’s actions have meant you are no longer a beneficiary, there may still be options available to you.  A new Will may not be valid, or alternatively you may have a claim for reasonable provision from the estate.  In either case, you should take legal advice promptly as strict and short deadlines apply.  Our litigation department would be glad to assist you in any queries you may have.

Failure to Amend Title to Property

There are two ways to hold shares in a  property: Jointly or as Tenants in Common.  If the property is held jointly by two people, the shares are not distinguishable in law and it means that upon the death of one, their interest will pass to the survivor.  If the property is held as Tenants in Common, the shares are distinguishable and it means that upon the death of one, the deceased’s  share will pass to the deceased’s estate.

If you wish to pass your share in property to someone in a Will , the gift will fail  if that property is held jointly, and not held as Tenants in Common.  The share will pass to the surviving property owner despite what the Will might say.

It is a simple process to convert a Joint Tenancy to a Tenancy in Common.  It is referred to as “severing” the joint tenancy, but this can not be done after your death.

When making a Will, particularly when you intend to leave a share in property, you should ensure you take proper advice, and give full instruction on your intentions.  Our Wills & Probate Team are happy to assist you in this and any other aspect of your Will.

If you believe that the wishes in the Will of someone who has died have been frustrated, there may be things you can do to seek redress.  These include seeking a declaration that the joint tenancy was  severed even though there may be reason to suggest that the technical process for severance was not followed.  This approach was considered by the courts in ‘Dunbabin and Others -v- Dunbabin [2022] EWHC 241 (CH)’.  Alternatively, perhaps consideration may be given to bringing a claim against solicitors for failing to sever the joint tenancy when the will was made.  Our litigation department would be happy to assist you in all respects.  You should act promptly as strict time limits may apply.

Gareth Jones – Associate Solicitor