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Impact of ‘out of date’ will on those we leave behind

Legal Question Time with Gardner Leader

Impact of ‘out of date’ will on those we leave behind

Eleanor Thomas, solicitor, dispute resolution team, Gardner Leader LLP

Knowledge of the importance of having a will is commonplace and the consequences of not having a will are reasonably well known; your estate would be divided in accordance with the intestacy rules.

However, something of equal importance is to ensure your will is kept up to date throughout your lifetime, particularly after major life events or, simply, as our wishes can inevitably change over time.

One of the many reasons this is important is that it can prevent claims being brought against your estate.

A common misconception is that your will is your “last will”.

Whilst testamentary freedom exists and is significant, the Inheritance (Provision for Family and Dependants) Act 1975 (‘the 1975 Act’) was brought in to enable financial provision to be made for categories of people who have been left out of a testator’s will (or there being no will in existence) or for those who have been provided for in a will but not sufficiently.

Claims under the 1975 Act are looked at objectively and claimants need to consider whether a will failed to make reasonable financial provision in all the circumstances of the case, according to the standard applicable to each claimant.

The recent case of Ubbi v Ubbi [2018] serves as a salutary reminder of the consequences of overlooking will updates and how matters can quickly become contentious on death.

Malkiat Ubbi and his wife, Susan Ubbi, married in 2000 and had one child together in 1994.

In February 2015, Mr Ubbi died suddenly and his last will, dated August 2010, left his entire estate to his wife.

Mr Ubbi hadn’t, however, provided for his two other children, born in 2012 and 2014 by his mistress with whom he had been having a secret relationship since 2007.

Mr and Mrs Ubbi had been going through divorce proceedings, but did not obtain a Decree Absolute and therefore remained married up until Mr Ubbi’s death.

Mr Ubbi had not updated his will since 2010 and therefore his two infant children had not been provided for.

His older child was also only due to benefit under the will if Mr Ubbi’s wife did not survive him for 28 days which, as it happens, she did.

In 2016, Mr Ubbi’s mistress brought a claim against his estate on behalf of their two infant children under the 1975 Act.

The court took consideration of the relevant circumstances of the case and agreed that the children fell within a category of applicants who could apply under the 1975 Act.

Their claim was successful and they were awarded a lump sum of approximately £390,000 from Mr Ubbi’s estate, which had an estimated value of £3.5-£4.5m.

Mr Ubbi had not updated his will in five years, despite leading a somewhat complex lifestyle.

If he had made updates to take account of the needs of his infant children, it is unlikely his will would have been challenged in this way.

His will reflected his false public life but not his hidden real life, despite the fact that unconventional life choices (as well as
conventional) should be reflected in a will as a testator’s “last wishes”.

A will is private until it is used so his privacy could have been preserved.

Estate disputes are costly, both financially and emotionally, and preventative steps can be taken to avoid such disputes.

It is vital to keep your will up to date, particularly after major life events.

That said, we cannot predict every eventuality and, indeed, it may be that an unexpected death leads to uncertainty.

In such instance, and in the case where a will is valid but reasonable financial provision has not been made, the 1975 Act may provide a remedy in circumstances where appropriate.

Author: Eleanor Thomas, solicitor, dispute resolution team, Gardner Leader LLP

T: (01635) 508187

E: e.thomas@gardner-leader.co.uk

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