Wills and Probate Update

This month we will be looking at recent developments in the world of Wills and Probate.

Funeral Wishes

In the autumn of 2015 an unusual legal dispute arose in the High Court on the point of where and how a loved one should be buried. The deceased, Iris Freud, was survived by her two children, Susanna and David. Susanna believed that her late mother would have wanted a traditional Church of England funeral. David on the other hand believed that their mother would want a funeral that followed the Jewish rites, in line with the faith of their late father. In this particular case, following the judge’s urgings that the parties should try to agree on the issue, a settlement was reached, but no doubt what was already an emotionally difficult time was made harder because of this uncertainty. It is worth noting that the issue that helped the parties to agree on where and how to bury their mother was allowing the 1916 pop song “If You Were the Only Girl in the World” to be played at the funeral. It is rare for this type of dispute to reach the Courts; generally, in a well-drafted Will, the deceased includes his or her funeral wishes.

New £1 Million Inheritance Tax Breaks

From April 2017 a new family homes allowance will be available. This will be worth an additional £175,000 per person by 2020. The Government’s plan is to provide every property-owning person a personal allowance of £500,000, or £1 million for eligible couples. The current rate of inheritance tax (IHT) is 40% payable on all assets a person owns over the current personal allowance of £325,000. Where a married person or civil partner transfers assets to his or her surviving spouse, the individual can leave as much as he or she likes to the survivor, free of IHT.

Low-Cost Will-Writing Battle

In our final Wills update, we will look at a case involving Barclays bank being sued by a disappointed beneficiary. The deceased’s daughter claimed that a botched Will made by the bank’s Will-writing service deprived her of a stake in her late father’s London home. The case underlines a wider problem with low-cost Wills.

In 2007 Ebenezer Aregbesola used Barclays’ £90 Will-writing service to create a Will dealing with his various assets including homes overseas and in London. His Will instructed that half of the London home be given to his daughter, Tinuola Aregbesola, on his death. The property was owned jointly by Mr Aregbesola and his wife – who was not Tinuola’s mother. Because of the joint ownership, upon Mr Aregbesola’s death in early 2014, the property went wholly to his wife. As you will have studied on the Diploma course, where a property is held by joint tenants, there will be rights of survivorship. In effect, regardless of what wishes are spelt out in the Will, the property will pass to the surviving joint tenants. Barclays should have severed the joint tenancy agreement, which would have enabled Mr Aregbesola’s half of the property's value to pass to his daughter. This simple formality was neglected, however, so the joint tenant, Mr Aregbesola’s widow, was legally entitled to the whole property.

The case highlights the danger of popular, cheap “DIY” Wills which are often too simplistic to reflect accurately their owner’s wishes. The bank’s lawyers should have issued the notice of severance as a matter of good practice. This would be a normal step to consider in any case where parents remarry and enter into property transactions with their new spouse.

The difficulties in this case arose because a joint tenant is under no legal obligation to comply with a deceased joint tenant’s wishes where the joint tenancy has not been severed. Unfortunately the only redress open to the disappointed beneficiary is for the person to sue the party that prepared the Will. Again in this case, if the Will had been prepared properly, then a great deal of additional emotional strain could have been avoided at what was already a very distressing time.