Life has a habit of changing dramatically when we least expect it. The further in advance we plan for something, the greater the potential for life to upset those plans. For most people, making a Will is a long-term plan (fortunately!). When you make a Will, you are specifying whom you wish to receive your money and property when you pass away. However, changes in your circumstances could change your views.
It is never too soon to have a Will in place, but it is also important to ensure that your Will is fit for purpose. In other words, it must be valid and give legal effect to your intentions.
Certain life events can change the effect of a Will or even render it invalid:
- Marriage or civil partnership will make any Wills made beforehand invalid. Although, converting a civil partnership to a marriage will not do so;
- Divorce does not invalidate a Will, but it may change its effects. It will affect any provisions which relate to your ex-spouse or civil partner, as they will be treated as having died before you. Generally, this means any gifts or appointments involving them will be null and void.
However, a more common way for a Will to become unfit for purpose is where your intentions change. You may no longer wish some beneficiaries of your Will to inherit from you, or you may wish to add new beneficiaries, for example. Crucially, if these new intentions are not reflected in your Will, they will not take effect. This may also lead to legal disputes.
This was demonstrated dramatically in a recent case, involving a double-life, a sudden death, and a claim for financial provision by two young children.
The case of Ubbi v Ubbi  EWHC 1396 (Ch)
The case arose after the sudden and unexpected death of Malkiat Ubbi, at the age of just 53. When Malkiat died in 2015, the terms of his Will meant that his wife, Susan, received the entirety of his £3.5 million estate.
Susan and Malkiat had a son together, Jarnail, and Susan had a daughter from a previous relationship, Jesse. However, the claim against Malkiat’s estate did not come from these children; it came from his two extra-marital children – Mattia and Gabriele.
When Malkiat died, Mattia was 2 years old, and Gabriele 6 months old. Their claim was brought on their behalf by their mother, Bianca Corrado, with whom Malkiat had been had been having an affair for around 6 years.
For some time before Malkiat’s death, Susan had been aware of his affair with Bianca, and she knew of Mattia’s birth in 2012. She accepted Malkiat’s assurances that things ‘would work out’. However, according to Susan’s account, she forced him to leave when he installed Bianca and Mattia in a flat which he owned jointly with Susan. Malkiat went to live with Bianca and Mattia in the flat.
Susan commenced divorce proceedings in 2014, the same year in which Gabriele was born. The divorce was not finalised, however, by the time of Malkiat’s death.
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The claim under the Inheritance (Provision for Dependants) Act 1975
Mattia and Gabriele’s claim was made under the Inheritance (Provision for Dependants) Act 1975 (IPFDA). We have looked at several previous claims of this kind on our blog. They are sometimes seen as a way for people cut out of an inheritance to overturn the deceased’s Will and claim money from their estate.
However, in Malkiat’s case, it was recognised that he would almost certainly have wanted to provide something for Mattia and Gabriele after his death.
The judge noted:
“One thing that the parties agree on is that Malkiat was a loving and devoted father”. Neither was Susan, as sole beneficiary and executor of Malkiat’s estate, opposed to the idea that they should receive provision from the estate. She accepted Malkiat would have wanted them to be provided for. The issue in the case was how much was reasonable; an issue which could have been resolved by a clear expression of Malkiat’s intentions in an up-to-date Will.
The judge awarded just over £386,000 to Mattia and Gabriele. This took into account contributions from Bianca to support the children, as her income and assets were considerable.
Malkiat may have given more to Mattia and Gabriele had he included them in his Will. However, the court’s decision was not a question of how much Malkiat would have given them. The court instead had to determine how much would represent ‘reasonable financial provision’ for the children, taking into account the many circumstances of the case. These included:
- The likely needs and resources of Mattia and Gabriele;
- Bianca’s ability to support them;
- Malkiat’s responsibilities to Mattia and Gabriele and others, such as Jarnail;
- The needs and resources of beneficiaries or other dependants of the estate (i.e. Susan, Jarnail and Jesse);
- The size of the estate.
As such, the claim cannot be seen as a ‘fix’ for the issues around Malkiat’s Will. Mattia and Gabriele had to claim for their financial provision, at significant costs in time and legal fees. Similarly, Susan defended the claim, incurring further costs to the estate. All of this could have been avoided by Malkiat reviewing his Will and updating it to account for his new circumstances.
So, how often should you update your Will?
Not everyone’s family situation will be quite as dramatic as Malkiat’s, but the case shows how quickly a life can outstrip the terms of a Will. Malkiat’s Will was made in 2010. In the 5 years before his death, his situation changed completely: both of his extra-marital children were born; he moved in with them and Bianca; he moved out of his home with Susan, Jesse and Jarnail; and he was on the brink of divorce.
A Will is often seen as something of a binary state – you either have one or you don’t. However, this doesn’t take into account whether your current Will is fit-for-purpose. It is more useful to ask – do you have a Will which is valid and reflects your wishes? If the answer to that is ‘No’, then you need to update your Will.
Here are some matters to consider:
- When was the last time you read through your actual Will? – You may have made your Will a long time ago, or have forgotten some details. Even if you have a good idea of what it says, recalling the terms from memory is no substitute for reading through what is actually written down. It is easy enough to assume that an intention, which you may have formed long after the Will was made, is included in its terms.
- Is a list of named beneficiaries out of date? – Your Will may give gifts to certain named people, for example: giving £1,000 each to “my grandchildren, Simon and Rebecca.” If another grandchild were to arrive afterwards, they would not be included in such a gift.
- Do your executors need updating? – The people you wish to benefit in your Will are not the only thing which can change. It might be necessary or appropriate to change the executors you have named in your Will. Perhaps other family members, who are now older, would be better placed to manage your estate after you are gone?
How can we help?
At Roche Legal, we are reassuring experts specialising in:
- Probate and Estate Administration
- Contested Probate and Will Disputes
- Trusts and Tax Planning
- Powers of Attorney
- Court of Protection
Need further help?
If you would like advice about anything discussed in this article, speak with a member of the team.