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Registering a Will: Much More Than Just Possessions

Many people still die without having registered a Will. People often forget that a Will usually deals with matters other than simply who gets what. The best illustration of this is a deceased person’s wishes, as whether they want to be buried or cremated. It is not at all uncommon for someone to change their mind on this subject as time goes on. Those that have registered a Will often fail to review it as time goes by. The result can be that provision for a dependent in a Will, say in a period such as we have experienced in recent years with falling pension annuity rates, can be totally inadequate, meaning that a deceased’s nearest and dearest are left struggling financially.

So is there anything that can be done in this type of situation? The short answer is yes.

It is possible to make an application to the court under the Inheritance (Provision for Family and Dependants) Act 1975. This allows claims for reasonable financial provision where it has not been made by the Will, or under the intestacy rules. An application by a surviving spouse is on a more generous basis than for other applicants, such as children, whether they are under age or not. The courts take into account many different criteria in deciding whether to award provision from the estate. These criteria include the existing and likely future financial resources and needs of the claimant. A starting point (and it is no more than that) in looking at provision the spouse should receive is what is commonly described as the “notional” divorce test. This, as its name suggests, is a consideration of what the surviving spouse would have received by way of an award from the court if the two parties had in effect become divorced at the date of death.

The position for children is much more restrictive than that of a spouse or a cohabitee. A claim can only be made for maintenance which would normally be taken as such moneys as will be required to take them through to the end of fulltime education. It will, however, take into account the manner in which the child has been living, or which he or she might reasonably expect to be educated or trained. A claim by an adult child, whilst not of itself disallowed, is fraught with difficulties if the individual is able bodied and either has a job or is capable of obtaining one.


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