• 3 November 2015

Are Your Affairs In Order?

by Macks Solicitors

It’s always a difficult and often devastating time for family and friends when a loved one passes away.

A recent case heard in the High Court highlights the importance of reviewing your Will to ensure that it reflects how you wish your assets to be distributed upon your death.

Ensuring that your Will is continuously reviewed over time or after a significant change in circumstance can also avoid bitterness and arguments that sometimes, unfortunately, follow a bereavement.

The circumstances of the recent case involved a terminally ill lady who asked her niece to live with her, care for her and assist in the running of her business. In return, the lady promised her niece she would leave her entire estate to her. The niece did everything she could to fulfil the request, spending substantial time away from her husband and family.

The aunt had made a Will in 1983, but shortly before her death she provided instructions to a solicitor to change it to reflect her new wishes. Sadly, however, she passed away before executing the Will, leaving the document drawn up in 1983 as effectively her last Will and Testament.

As the niece had suffered a substantial upheaval both to her family life and her finances, she challenged the 1983 Will on the basis of proprietary estoppel, to ensure that her aunt’s wishes were fulfilled.

For a successful claim of proprietary estoppel, three requirements must be fulfilled. These are…

  1. That a person has been given an assurance that they will benefit;
  2. this assurance has been relied on and
  3. it has been to the detriment of that person who was given the promise or assurance.

The court will then consider whether it would be unconscionable to grant relief to the person to whom the promise had been given. The judge ruled that the niece had suffered a detriment by committing to care for her aunt, regardless as to how long that care was required for.

She had, in fact, adapted her entire life to assist in the needs of her aunt. The judge held that detriment does not have to be financial and that all circumstances must be considered. As a result, the niece was granted relief to receive the residue of the estate once debts and legacies had been distributed.

This case demonstrates the importance of reviewing your Will over time, particularly when there is a significant change in your circumstances.

If you feel it’s time to update your Will, call the Wills and Probate team at Macks Solicitors in Middlesbrough, Redcar and Darlington, who will be able to talk you through the steps required to amend your Will, or alternatively can draft a new document to reflect your new circumstances. Macks are also able to offer advice if you find yourself involved in an inheritance dispute.


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