With marriages and civil partnerships having to be postponed on more than one occasion for a huge number of people during the COVID 19 pandemic, sometimes at short notice, the question of Wills can often be overlooked.
Are you aware that you can prepare your Will in contemplation of marriage or the creation of a civil partnership?
If you don’t address this and your Will is revoked, then the intestacy rules will apply – these state:
- If you die leaving a surviving spouse or civil partner but without children, your spouse or civil partner will inherit your entire estate.
- If you die leaving a spouse or civil partner and children, then the surviving spouse or civil partner inherits all of your personal chattels and a statutory legacy (currently £270,000). The remaining estate (if any) is divided as to 50% to the surviving spouse or civil partner and 50% shared equally between your children.
You should note that jointly owned assets pass automatically to the surviving joint owner and not under the intestacy rules.
This may not be how you wish to have your estate divided as you may have children from a previous marriage or civil partnership or other people that you wish to provide for.
What if I amend my existing Will after marriage?
If you amend your Will after your marriage and that Will is challenged, either due to a lack of capacity or being incorrectly executed, then problems can arise if that Will is found to be invalid. It will not be possible to revert to the previous Will as it would have been revoked by reason of the marriage.
Even if you are happy for your spouse or civil partner to inherit your entire estate in the event of your death, it’s always advisable to prepare a Will to cover the situation arising out of a common accident where you both die or die within 28 days of each other. The intestacy rules require a 28-day survival period between spouses or civil partners in order for the rules to apply.
What if there’s incapacity to create a Will?
Other issues that practitioners should be aware of include the situation that arises if someone has the capacity to marry but not the capacity to prepare a new Will.
The capacity to marry requires the person concerned to be able to understand the nature of the marriage contract, the rights and responsibilities that come with marriage (including those of a financial nature). No undue influence must be present.
By comparison the capacity to make a Will is far more complex and case law provides that a person has the capacity to execute a valid Will if they can comprehend:
- What a Will is and does
- Understands the effects of making a Will in the form proposed
- The extent of the assets (but not necessarily their value) being disposed of under the proposed Will
- The identity of persons to whom the Testator should give consideration to under the terms of the proposed Will and anyone to whom they have a greater moral obligation to.
In addition, the Mental Capacity Act should also be considered which sets out that a person must be considered to have mental capacity unless it is established that they lack capacity. It sets out that to have capacity to make a Will they must be able to:-
- Understand the information provided
- Retain it (even if for a short length of time)
- Be able to use or weigh up what they have been told and
- To communicate their decision
The Mental Capacity Act also states that a person should not be treated as unable to make a decision unless all practicable steps have been taken to enable them to do so without success or merely if it is considered that they have made an unwise decision.
How Moore Barlow can help you
This can be a complex area of law and, here at Moore Barlow, we are able to advise on all aspects of mental capacity and Will drafting to ensure that the beneficiaries you wish to receive your estate, do so.
Discover how Moore Barlow’s expert team can help you or a loved one in this area.
