People often ask whether an estate will ‘go to Probate’, although many are unclear exactly what this means. A Grant of Probate (or Letters of Administration if there is no Will) authorises the Executor to administer the estate by collecting in...
The trouble with wills that have not been professionally drafted is that they very often signally fail either to accurately reflect the testator's wishes or to achieve fairness. That was certainly so in the case of a man who, by his home-made will, all but disinherited the wife to whom he had for many years been happily married.
The man died in his 60s following a long struggle with motor neurone disease. Left to grieve were his wife and four children, two of them from a previous marriage. By his will, which was apparently drafted by his brother-in-law, he bequeathed to his wife only the contents of their matrimonial home, which were valued for probate at £1,000.
All the rest of his substantial estate, including the matrimonial home – which was held in his sole name and valued at £500,000 for probate – was divided equally between the children. The end result was that his wife, who cared for him during his illness, was living with their youngest child in a house that did not belong to her and was financially barely able to manage.
After she launched proceedings, the High Court noted that the will was a surprising document given that the long second marriage was a happy one to the end. Upholding the wife's claim under the Inheritance (Provision for Family and Dependants) Act 1975, it had no doubt that the will failed to make reasonable financial provision for her.
Had the marriage been less contented and ended in divorce, the wife would almost certainly have been entitled to at least half of the marital assets. Given that it was a partnership marriage, the Court took the view that she had an irreducible right to half of her husband's estate. Prior to his death, he had assured her that that would be the case.
The Court was also entirely satisfied that half of the matrimonial home was held by the husband's estate on constructive trust for the wife. The property was placed in his sole name because a mortgage lender was, at the time of its purchase, only willing to advance money to him. She religiously paid half the mortgage for many years and it was clearly their common intention that the property should be jointly owned. He had made the will on that assumption.
With a view to achieving fairness, the Court varied the provision made for the wife in the will. It directed, amongst other things, that the matrimonial home should be sold in three years' time, when her youngest child completed secondary education, and that half the net proceeds should be paid to her.