Stephen Gerlis
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Death brings out the worst in people. That means more work for lawyers.
As a young solicitor in Cricklewood, I had occasion more than once to sort out the consequences of a “house raid”. This happens when, while most of the family is at the funeral burying the deceased, others are at the late lamented’s house clearing it of all its contents, irrespective of any right to do so.
Where there’s a will, there are relatives. Fans of the recently concluded BBC drama series True Dare Kiss will have seen the mayhem caused by the consequences of the “death” of the family’s unloved, domineering patriarch. The siblings were each left a stuffed animal in his will, except for the favoured son, who got the house. A will can often be a last act of revenge, the final word from beyond the grave. Many a testator has relished the prospect of the effect on his or her relatives of wicked machinations in that important piece of paper. As the story goes: “To my brother-in-law Louie, who I promised to remember in my will . . . Hallo Louie!”
Sometimes the tangled web of confusion caused by a will is not deliberate. Viewers of Coronation Street will recall the problems created by Mike Baldwin’s will, drawn up at a time that he was alleged to have been suffering from Alzheimer’s disease. The net result was the whole of his estate going just to one son, giving the other son cause to challenge it. This in turned raised two issues: whether Mike Baldwin had the mental capacity to make the will; and whether reasonable provision was made for family and dependents. These type of disputes are by far the most common and are normally dealt with by the Probate Division of the High Court. That division used to be part of the Probate, Divorce and Admiralty Registry, known by lawyers as the “Three W’s”: wills, wives and wrecks.
Making such claims is not straightforward, not least of all because the law recognises the right of a person to organise their affairs in the event of their death as they see fit. This is subject only to the obligation to make “reasonable provision” for a spouse or any other person who was being maintained by the deceased at the date of death. In deciding whether or not the will does make such reasonable provision the court can take into account several factors, including “the financial resources and financial needs which the applicant has, or is likely to have in the foreseeable future”. Self-sufficient relatives need not apply.
Such disputes can drag on, Bleak House-style, for years unless the court gets a grip on them in order to effect a swift conclusion. Not leaving a will at all only makes matters more complicated in the event of a disagreement between relatives. It also slows down the administration of an estate.
For many civil and family proceedings, the death of a party brings the litigation to a swift and final halt, as Janan Harb, the former wife of the late King Fahd of Saudi Arabia, found to her cost. At the courts we do our best to mitigate death’s sweet sting. However, the assistance of the courts does have limitations. Recently I received a letter from solicitors acting for one of the parties in a civil suit. It read: “Our client has just died. We would be obliged if the court would adjourn the proceedings generally, with liberty to restore”. Even judges would admit that might be a step beyond our powers.
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