Last Will

0rt

hi there lads..
One of me mates just died and it looks like theres going to be hassle with his family.

he wrote a will on an a4 piece of paper, leaving everything he owns (which isnt much) to his girlfriend.. Signed it, put it into an envelope, signed that and dated it.. I witnessed it but never signed anything.

now it was put together over a feed of drink and i totally forgot about it and didnt even know he had given it to her..

low and behold 2 years later he dies, she digs out this envelope she promised not to open until he pass's away..
Enter the bang of reality that hits me.. he was serious!

Because he wasnt married to her, the sister and brother became next of kin but they didnt have a relationship with him over the last few years over their fathers will, but thats a different story.


Looks like they are are going to cause trouble with his belongings, and my question is.. does the 'will' he wrote have legal standing..
I just want to know will i be wasting my time going to a solicitor if things do get out of hand.

Cheers lads.

Mr.Fred

I think there may be a few issues with the wording of it (state of mind needs to be mentioned) and a few other bits at a minimum, if it was just a note written over a few beers it may have no legal standing. If you witnessed it you shouldve signed it. Also there should be two witnesses I think.

If he hasn't anything of worth it may not be of interest to the brother and sister.

I may be wrong on the above.

Tramps Like Us

He doesnt necessarily have to have been married to her, have they lived together, and for how long?

But yes, there are issue with the will, it's invalid

0rt

cheers lads, he was a functioning alcoholic, he didnt know the ins and outs of a will, now i can see he was serious about it.
obviously they were his wishes.. but his brother and sister probably wont honour that.

Tramps Like Us

Did he have children with his girlfriend?

0rt

no kids, no marrage, years together.. dosent look good

camphor

0rt wrote: »

hi there lads..
One of me mates just died and it looks like theres going to be hassle with his family.

he wrote a will on an a4 piece of paper, leaving everything he owns (which isnt much) to his girlfriend.. Signed it, put it into an envelope, signed that and dated it.. I witnessed it but never signed anything.

now it was put together over a feed of drink and i totally forgot about it and didnt even know he had given it to her..

low and behold 2 years later he dies, she digs out this envelope she promised not to open until he pass's away..
Enter the bang of reality that hits me.. he was serious!

Because he wasnt married to her, the sister and brother became next of kin but they didnt have a relationship with him over the last few years over their fathers will, but thats a different story.


Looks like they are are going to cause trouble with his belongings, and my question is.. does the 'will' he wrote have legal standing..
I just want to know will i be wasting my time going to a solicitor if things do get out of hand.

Cheers lads.

A lot depends on the exact wording of the document. He may have written in the present tense so everything was actually gifted before he died.

Tramps Like Us

If they lived together for more than five years she will get some of his stuff at the very least,as they were cohabiting. However she will need a solicitor to help her with this, keep the "will" it will come in handy as evidence.
Dont despair.

camphor

Tramps Like Us wrote: »

If they lived together for more than five years she will get some of his stuff at the very least,as they were cohabiting. However she will need a solicitor to help her with this, keep the "will" it will come in handy as evidence.
Dont despair.

They cant have lived together for 5 years since that Act came into being.

coylemj

OP, the so-called will is worthless because it needs to be signed by two witnesses, otherwise it's not worth the paper it''s written on.

Pro Hoc Vice

camphor wrote: »

They cant have lived together for 5 years since that Act came into being.

The act has been held I believe to be retrospective.

camphor

infosys wrote: »

The act has been held I believe to be retrospective.

Link?

Pro Hoc Vice

camphor wrote: »

Link?

There is no reported case, but a friend of mine was in a case where it was raised. I am also aware of good will drafters now requiring information of all persons the testator lived with and periods they lived with them so as to avoid any possible issue.

valleyoftheunos

The "Will" would not be valid as it fails to meet a the requirements of a valid Will. There is a possibility that His Girlfriend may have entitlements under the 2010 act but that is a matter for a solicitor to advise her on. She should seek legal advice if she has not already.

As an aside even were the "will" were seen to be a gift of the property it will not help His Girlfriend because as my old lecturer was very fond of saying, "Equity will not assist a volunteer to perfect an imperfect gift."

camphor

infosys wrote: »

There is no reported case, but a friend of mine was in a case where it was raised. I am also aware of good will drafters now requiring information of all persons the testator lived with and periods they lived with them so as to avoid any possible issue.

There is a retrospective provision in the Act with regards to agreements between the parties but no retrospective provison with regards to determining when the cohabitation for the purposes of the Act starts. Given that there is always a possibility of an agreement between cohabitees, will drafters may wish to avoid post mortem claims from former cohabitees.
What you are saying does not establish that it was held that retrospectivity applies in this case or that cohabitation predating the act are all covered. Because of the effect on property rights and the rights of a subsequent family based on marriage it is more likely that if there was retrospective effect except in the absence of a written agreement the act could be struck down as unconstitutional.

Pro Hoc Vice

camphor wrote: »

There is a retrospective provision in the Act with regards to agreements between the parties but no retrospective provison with regards to determining when the cohabitation for the purposes of the Act starts. Given that there is always a possibility of an agreement between cohabitees, will drafters may wish to avoid post mortem claims from former cohabitees.
What you are saying does not establish that it was held that retrospectivity applies in this case or that cohabitation predating the act are all covered. Because of the effect on property rights and the rights of a subsequent family based on marriage it is more likely that if there was retrospective effect except in the absence of a written agreement the act could be struck down as unconstitutional.

So your understanding of the Act, a person who is cohabiting say since 1980 no children will have no right under the Act as its not 5 years since the passing of the Act.

The Act simply says "
(5) For the purposes of this Part, a qualified cohabitant means an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period—

(a) of 2 years or more, in the case where they are the parents of one or more dependent children, and

(b) of 5 years or more, in any other case."

While I accept your point in relation to a couple who lived together years ago, and one of them then went on to marry another person, there could in that situation be constitutional issues if the Act was interpreted to say the partner was to inherit.

But I would not tell the OP or anyone else that they do or not not qualify under the Act, as I do not have the full facts, and this Act has not been fully tested in the Courts. My own personal opinion is that if a person is cohabiting without children for in excess of 5 years they may have redress.