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How to decide on The Split

I have recently finished watching BBC drama ‘The Split’, which always makes interesting viewing for lawyers.

Despite the scarily frequent professional conduct breaches obvious to the trained eye, it has raised some thought provoking issues…

One of the ‘cases’ being dealt with by Hannah Stern (no idea why, as she is clearly a family lawyer, and not a probate lawyer), is the fall out between ex-wife and partner of a deceased Lord.

Hannah’s instruction to “get Contentious Probate involved” after what appeared to be one of several meetings, came way too late in the process. If there is a dispute amongst potential beneficiaries of an estate, step 1 should be to get Contentious Probate involved at the outset and take their advice before engaging with any other type of lawyer. They will provide practical advice on how not to inadvertently make the situation worse, which would prove invaluable later down the line.

Unfortunately, if you are dealing with a contested estate, you are in for the long haul – it is a minefield, which can take years to conclude, and so as a consequence, it will very likely utilise a large proportion of the contested estate assets in fees. Getting advice on how not to make the situation worse from the outset will almost certainly mitigate this in the long term.

Once you have instructed a probate lawyer, step 2 is to do a Will Search, with a company like Certainty, to check that the Will you are looking at is the last made by the deceased. Certainty hold record of five million Wills, so it is becoming pretty obvious that a search should always be carried out when only 41% of UK adults have written a Will.

The administration of the estate can be progressed simultaneously with the litigation, if no caveat has been entered at the Probate Registry. Step 3 may be to enter a caveat, in order to protect your own position.

Step 0, however, starts with the deceased during their lifetime. Will drafting is everything, and arranging for a professional to draft your Will can prove invaluable.

As is common for a significant number, our families often combine two or more together. A testator needs to think seriously about how to provide for each of his beneficiaries, and consider the impact on each of them, compared to the others. How to decide on ‘the split’ of the estate takes careful thinking and you (or at least your estate) will only benefit from professional guidance.

Countess Caroline was given a right to live in her cottage by way of a pre-nup, but that right specifically came to an end on her ex-husband’s death. I would not want to criticise the drafter of the pre-nup, who would likely have been a family lawyer, but that lawyer should have taken some advice from a probate lawyer before drafting a pre-nup that terminated the Countess’ right of occupation so suddenly.

The better alternative would very likely have been to allow Countess Caroline to live in the cottage for the rest of her lifetime, rather than the rest of his. This would have given ger certainty and security, which she may not have contested at all in the event of her ex-husband’s death. Or a second alternative would have been for the Lord to have provided Countess Caroline with a lifetime interest in the cottage by way of his Will. Either way, she may well have been quite happy with that.

Instead, she is now being treated as a tenant who needs to be evicted (which never sits peacefully by the way), so is making a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975, which will open the estate up to a whole new world of time frames and costs.

If the 1975 Act claim was inevitable whether the Lord had included Countess Caroline in his Will or not, the lawyer who drafted the Will would at least have been able to provide attendance notes in support of the Lord’s capacity at the time of writing the Will, so that the longevity of the ensuing litigation could well be mitigated.

As I write, the key message leaping out of the page is to get a lawyer involved as early as possible – do have your Will professionally drafted and do “get Contentious Probate involved” as early as possible if you can foresee litigation looming on the horizon (it is usually an obvious loom)!

Handily for this blog, Hannah is also divorcing her own husband, which brings up all sorts of questions that need to be addressed in her Will. The couple have minor children, so guardians need to be addressed, and presuming that she would now wish to redirect her estate to her children, trustees need to be appointed to manage the estate assets for the children. She will also need to consider inheritance tax, as her estate will potentially now be passing to non-exempt beneficiaries.

Hopefully, being a lawyer, she would have had a Will in place during her marriage, and on the advent of divorce proceedings, she would have changed it. Us lawyers, however, are the worst at taking our own advice.

It is crucial to change your Will as early as possible in the divorce process, as until you have a decree absolute, either your Will remains valid (if you have one) or your intestacy (if you do not have a Will) makes provision for your spouse until that point. Hannah will have advised her clients of this, but has she taken her own advice?

If you would like to discuss your current circumstances or plan for the future, please contact our Wills, Trusts and Probate team on 01788 557722 or email sarahhorton@brethertons.co.uk