Does an unsigned Will override intestacy if spouses separate before death?

Blog Question –

‘James’ asked us

” Does an unsigned Will take effect instead of the intestacy rules if the deceased and her husband were separated?”

This question relates to situations where a married Testator has started to make a Will but dies before signing it. In James’ case, his mother and father had been living apart for many years. James told us his mother had instructed a Will writer to prepare a Will leaving her entire estate to her son. The Will had been prepared and an appointment made for the completion of the Will. Unfortunately, his mother died suddenly before she could sign it.

James wanted to know if the fact that his mother had recently taken steps to make a Will expressing her wish for her son to inherit her estate would have any effect in overriding the intestacy rules.

Answer –

The intestacy rules are a set of statutory rules that apply where a deceased person has failed to leave a valid Will. One of the conditions for a Will to be valid is that it must have been signed either by the Testator or by some one else in the Testator’s presence and at the Testator’s direction.

The Administration of Estates Act 1925 states that the people entitled to inherit the estate of a deceased person in an intestacy situation includes a surviving spouse or civil partner. It doesn’t say the spouse/civil partner must be living with the deceased person immediately before their death.

Contrast this with the legal position if the marriage has been officially brought to an end by divorce. In that situation the ex-spouse is not entitled to inherit under the intestacy rules.

The short answer to James’ question is that his mother’s unsigned Will can’t override the intestacy rules. But James might still be able to inherit from his mother’s estate.

• The surviving spouse isn’t always entitled to inherit the whole estate under the intestacy rules. If the gross value of the assets exceeds £250,000 any children of the deceased person are entitled to one half of the excess.
• If the deceased held a joint asset with their child(ren) such as a joint bank account or a property held as joint tenants in equity those assets don’t come under the intestacy rules. They pass direct to the surviving co-owner.

Alternative solutions where there’s an unsigned Will

James could try negotiating with his mother’s husband to see if they can reach a financial agreement. He might use the existence of the unsigned Will to try to persuade his father on moral grounds to give up at least some of the inheritance.

Sometimes playing a tactical game can bring about a solution in these situations. A claim for financial provision from the deceased’s estate by an adult child usually has only a remote chance of succeeding in the courts but the threat of that a claim might be made can sometimes work to bring parties to the negotiating table.

Points to note

#1. Separated couples should make new Wills as soon as possible – if there’s a reconciliation later the Will can be amended.

#2. Always sign a new Will as soon as possible – just in case!

IMPORTANT

You should always get independent legal advice before taking any action.

Check the date of this post as the law may have changed since it was written.

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