Accidental Intestacy

Even with a will, all or part of an estate can fall under the intestacy rules instead of the terms of the will.

The reasons for partial, accidental or unintentional intestacy range from mundane to melodramatic.

As noted in the Legal section, a married couple made mirror wills but each, mistakenly, signed the other's document - two signatures, no valid wills.

Many wills simply can not be found - well-hidden somewhere in a box in the loft or stored in a secret location so secret that no one can locate it.

Some wills are found and then surreptitiously destroyed, usually by someone who has more to gain by its destruction than by its discovery.

Many people who die in car, airplane or other accidents and have not yet made a will also die intestate.

Although solicitor Richard Sherrington was killed in a car crash, he had made a new will - in fact, not long before he died. But intestacy nevertheless reared its ugly head, albeit temporarily.

Sherrington left everything to his second wife, and nothing to his first wife and the three children they had together - although he remained close and devoted to all of them.

His first wife and son sued - successfully - to have the will declared invalid. The result was intestacy: an invalid will was equivalent to no will. And under intestacy, his children would inherit part of his estate, along with his widow (the second Mrs Sherrington).

His widow appealed, and the Court of Appeals overturned the verdict, ruling that Sherrington's will was valid. (Full story)

Although this intestacy was short-lived and never put into effect, this saga illustrates accidental or unintentional intestacy. If Sherrington's widow had not appealed, or if she had lost the appeal, he would have died intestate. And under intestacy, the division of his estate would have been very different from the way it was distributed under his will.

Accidental intestacy can be sudden, as in the Sherrington case, or it can happen gradually and insidiously. For example, you have a will but your circumstances have changed since you made it. "Peter," in this hypothetical anecdote from the Courts Service, shows how easily this can occur:

Peter Prospers: A Case Study

Accidental intestacy - some other ways

Some people intentionally do not make a will in the mistaken belief that their spouse/civil partner automatically inherits the entire estate. In fact, they inherit only a part of it (determined by the size of the estate and if other close relatives are alive). The remainder goes into intestacy.

Divorce If you divorce, your spouse - so far as your will is concerned - is regarded as if they died with the ending of the marriage (the effective date is the issuance of the final decree). The ex-spouse can not be a beneficiary (or executor) and their bequest will fail unless the will specifies an alternative recipient.

Marriage When you marry, whether for the first or ninth time, your marriage automatically revokes your previous will (unless you expressly state that you are making your will in contemplation of marriage.) If you marry (or remarry) and die before making a new will, you will be intestate.

Beneficiary dies before you do If a beneficiary predeceases you, and you have not specified an alternative beneficiary, the gift lapses. Its value goes into the residue and, if you have not specified a beneficiary for the residue, it is distributed according to to intestacy. This predecease problem is especially important for couples both of whom might die in an accident but not at the same time. Survivorship clauses and alternate beneficiaries anticipate these potential problems.

Witness as Beneficiary Error A witness to a will can not also be a beneficiary - and this holds for their spouse/civil partner as well. Some assets have fallen to intestacy because the witness was the husband or wife or civil partner of a beneficiary. HM Courts Services provides a hypothetical example of an elderly woman who knows that her neighbour - who is a beneficiary - should not be a witness, but she does not know that the same rule applies to the neighbour's husband. If the neighbour's husband acts as a witness, the gift to the spouse fails and goes into the residue.

Improperly Witnessed You sign in front of two witnesses, who then sign. It sounds simple and easy. In fact, many people get it wrong, either with the witnesses, or where or how they sign and so forth.

No residue. A will may provide for various gifts but make no provision for the residue. If an estate does have residuary assets but no beneficiary to give it to, those assets are distributed according to intestacy.

Case Study: Taryn Butler

Taryn Butler, a widow and mother of two young children, told a harrowing tale on Radio 4's Women's Hour on 14 May 2009.

Shortly before he died, her wealthy husband Mark, who had cancer, made a will. But the will had only one witness. It was declared invalid. Mark Butler died intestate.

By the rules of intestacy, Taryn inherited only £125,000 (this statutory amount rose to £250,000 in 2009) plus a life interest in half of the rest of the estate. The other half went to their infant children.

It is not clear why Mark Butler, a successful businessman and son of a judge, apparently thought that only one witness was required. He drafted his will only two days prior to his death, gravely ill and under severe time pressure.

In addition to the invalid will, the dilemma for his widow and children was compounded by other problems, highlighted in media replies by several solicitors and financial planners.

The house had a substantial mortgage - and no life insurance to pay it off in the event of his death.

The family home was in his name only, not jointly owned.

Lacking a valid will, he could take advantage of Business Property Relief, which might have reduced his IHT bill considerably.

Taryn Butler applied under the Inheritance (Provision for Family and Dependants) Act 1975 to obtain a larger share of the estate. Technically, she was suing her own children.