Benjamin Franklin said that death and taxes were the only certainties life offered. Divorcing couples have more reason than others to plan for them because of the consequences which could otherwise ensue.
Despite the fact that since 1938 the law has made what has been described as ‘a legislative incursion into the freedom of testamentary disposition’ it is better for anyone who has a child or any property to make a will than not to do so.
Where there is a no will the law provides that the surviving spouse inherits the entire estate of the deceased up to the amount of £200,000 if there are no children. Otherwise, the surviving spouse inherits the first £126,000 of the estate and the investment income on half the remaining capital, while the children will inherit the remaining half of the capital immediately and the rest on the death of the surviving parent.
Whether a deceased who was domiciled in England or Wales dies testate, that is having made a will, or intestate, the Inheritance (Provision for Family and Dependants) Act of 1975 enables certain people to make an application for financial provision from the deceased’s estate. The category of possible applicants includes the wife or husband or former wife or husband who has not remarried, a child of the deceased (who does not have to be a dependant (re Leach 1985 2 AE 754), any person who was treated as a child of the family in any marriage to which the deceased was a party and any person not in the above category who was maintained wholly or partly by the deceased. The matter for the court is whether the will or the effect of the law on intestacy makes reasonable provision for the applicant. The applicant has to make the claim within six months of the grant of administration, if the deceased left no will, or grant of probate if the deceased left a will.