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Monday 12th October 2020 Alexander Mahdavi 

Intestacy - to will or not to will, that is the question!

The need to write a Will cannot be stressed enough. Nonetheless usually over 50% of the UK population do not write their Will. During the pandemic, many law firms are seeing a surge in Wills instructions, but whether this is tipping the scales to lower the pre pandemic statistics is yet to be ascertained.

What happens if I do not make a Will?

If you do not make a Will, you will die intestate. This means that you will have no say in what happens to your assets as the law dictates who benefits from your estate from among your blood relatives. The law allows for a hierarchy of beneficiaries who can benefit from your estate and one group of beneficiaries will benefit to the exclusion of all subsequent groups. For example, if a person dies without leaving a valid Will and is survived by their parents, their siblings and their uncles and aunts, their parents who have a higher priority, will inherit their whole estate to the exclusion of their siblings and uncles and aunts. In instances where there are no living blood relatives, the whole estate passes bona vacantia to the Government.

I have made a Will. Does this mean that I am safe from intestacy?

Writing your Will is a big step toward taking control of your affairs. However, it is not just a matter of writing a Will. The Will you write must be valid under current legislation. For your Will to be valid, it has to have been executed correctly. That is, it has to have been signed in the presence of two witnesses. If your Will is signed by only one witness, the Will is invalid. Similarly, if you sign your Will with one witness present in the first instance and at a different time, you have a second witness sign the Will, the document is invalid even though on the face of it, two witnesses have signed the Will. In both these instances, you will die intestate because your Will is not valid. As a consequence, those you intended to benefit in your Will, especially if they do not have any blood ties to you, will not inherit from your estate. To avoid having an invalid Will, both witnesses have to be present at the same time when you sign your Will.

What else can make my Will invalid and lead to intestacy?

In addition to the improper execution of your Will, there are circumstances which can lead to your Will being invalidated.

What can be done if my estate is intestate?

  • If you physically destroy your Will and do not write another one, you die without having a valid Will in place. This is similar to not having a Will in the first place, and your estate devolves under the rules of intestate.
  • If you have a Will in place but decide to get married, your marriage will revoke your existing Will. It is imperative that you write a new Will after getting married. If you are about to write your Will and know that you intend to get married in the future, you can have your Will written in such a way that it is likely to remain valid even after your marriage.

By not writing a Will you relinquish control over your estate. On the other hand, by leaving an invalid Will, you leave behind disappointed beneficiaries in addition to still releasing control over your estate. However, all is not quite lost, as there is a possibility of varying the disposal of the estate, though this may not be quite so straightforward. A variation is possible provided all the various requirements are met and so you need to seek legal advice.

If you are dealing with an intestate estate and need assistance on how best to navigate this quagmire, please contact Alexander Mahdavi by email on amahdavi@jpclaw.co.uk or telephone on 0207 581 7505 or connect with him on LinkedIn.


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