Actual Intestacy Examples

Here are examples of cases that had to be resolved by the law courts:

1. David Thorner: 4 years to settle a £3.5 million estate
It took four years – and an estimated £400,000 in legal costs – for David Thorner to receive what many believed was his due. David, who had worked on the Somerset farm of his cousin Peter for almost 30 years, had been named as principal beneficiary in a 1997 Will. But Peter destroyed that Will in order to remove a pecuniary legacy and after his death in November 2005 no new Will was found. Other family members claimed the whole estate under intestacy rules. With almost £3 million at stake, mediation failed. The case went from the High Court and Court of Appeal to the House of Lords before David finally succeeded in 2009 by way of proprietary estoppel, in that he had acted to his considerable detriment in reliance on an expectation repeatedly encouraged by Peter that he (David) would inherit.

David’s solicitor, Stephen Gisby believes that Will Registration could have helped avoid David’s agony – not only by providing reliable information about Peter’s Will but also by reminding the solicitor acting for Peter to prepare a new Will. His brother Kevin Thorner adds: “The complete reversal, back to the original decision, means a difference to my brother between virtual bankruptcy and being a substantial landowner.”

2. Family quarrel over house
London law firm Adams Solicitors quote a case where only a copy could be found of a father’s Will. This left the family home, the main asset of the estate, to a son with whom he had lived for several years. But the other children, who stood to inherit far more under intestacy rules, argued that the copy was forged – or if not, that the deceased must have revoked and intentionally destroyed the original.

The court ruled the photocopied Will be accepted as valid after hearing independent evidence that the deceased had indeed intended his son to inherit the family home – and that two people recognised the photocopy as that of the original will which they had witnessed.

Mohinder Chima, Head of Private Client services at Adams, says: “This case resulted in unnecessary costs and no doubt a considerable amount of ill-feeling in the family. The legal proceedings also delayed the administration of the estate for a very considerable period. This could easily have been avoided had the original of the Will been prepared with the benefit of professional advice, retained in a safe place known to the family – and registered with Certainty.”

3. Court rejects intestacy claim
Rowe v Clarke (2005) concerned a Mr Clarke and a Mr Rowe, who had lived together for several years. Mr Clarke made a Will that passed his entire estate to Mr Rowe. The original, which had been kept in the men’s home, was never seen again – but Mr Clarke had sent a copy to Mr Rowe’s mother. The court heard that after Mr Clarke died, his brother Kenneth (who was not close to him) came to the house, removed a number of documents – and obtained a grant of administration of the estate on the grounds of intestacy. This would mean that Mr Clarke’s family, not Mr Rowe, would inherit his whole estate. Where a will is last traced into the testator’s possession and cannot be found at his death, there arises a presumption that the testator has destroyed the will with the intention of revoking it. In this case the judge decided that the presumption was exceptionally weak. He found that Mr Clarke was not well organised, had not looked after the will carefully but had simply lost it. The judge therefore pronounced in favour of the copy in Mrs Rowe’s possession, and revoked the grant issued to Kenneth.

A lost or missing Will triggers two sets of problems:
1. It may lead to a claim of intestacy, which can take three years or longer to settle via the law courts. The Law Commission (quoting the National Consumer Council) says: “Nearly one quarter of 55 to 64 year-olds have personal experience of the human and economic costs associated with intestacy or know someone who has.”
2. While a Will may not please every family member, a lost Will creates the perfect conditions for a bitter and expensive family rift – especially if accompanied by allegations of destruction or forgery. City law firm Wedlake Bell say that disputes over wills and inheritance have soared since 2006: contentious probate actions are up by 153%, inheritance disputes by 330%. Another London law firm, Seddons, estimate that a remarkable one in ten people have been or are currently locked in dispute following a death in the previous six months. Unrecorded figures will be far higher as most cases are settled without coming to court.

As these cases show, both issues can easily come to the fore – and if a Will cannot be found, it might as well never have been made.

The simple solution - Make a will and ensure it is stored securely, regularly reviewed and updated.