Where there are two wills theres a row ?

desbrook

Mr and Mrs Smith make a will at their family solicitors . They have two "children " - 23 and 25 . No grandchildren . Mr Smith has one brother and Mrs Smith 2 brothers and two sisters . Reluctantly Mr Smith agrees and puts in his will that if his he, his wife and two "children" were to die together that the total of five siblings would share the estate equally ie. 20% each X5 .

A week later he has a change of heart - goes to another solicitor across the road and tries to write another will without his spouses' knowledge .

Can he include that in the event of he, his wife and children dying together 50% of the marital estate goes to his brother ?

If he can what is likely to happen if the dreaded scenario (all four dying )occurs a month later ?

Beano

2 things.

2 people cannot make a will. They would each make separate wills. So if Mr Smith makes another will that makes HIS previous will null and void. So in this case i assume that if they all died together that the share out would be as follows

10% X 5 from Mrs Smiths will
25% to Mr Smiths brother (50% of 50%)
25% shared amongst Mrs Smiths siblings.

BUT is there a not a ruling that if two people die together that the older one is assume to die first so a clause like the example above would be null and void anyway.

all of this simply my opinion.

Peregrinus

Um.

This will be a complex mess. And here’s why:

First thing to remember: neither of them can make a will disposing of “the marital estate”. They can each make a will disposing of their own estate. A comorientes clause usually works by saying that the spouse and kids inherit nothing if they do not survive the deceased by at least, say, 30 days. So if they all die in a car smash, then Mr. X’s property goes under Mr. X’s will, and Mrs. X’s property goes under Mrs. X’s will. For jointly-owned property, a half-share goes under each will. Even for property which is held on joint tenancy (as the family home is quite likely to be) which normally passes to the survivor, under Succession Act 1965 s. 5 there may well be a presumption of simultaneous death, so no survivor, so a half-share passes under each will.

Secondly, in general, there is freedom of testamentary disposition. I can make a will disposing of my property how I like, and I can subsequently tear it up and make an entirely different will disposing of it differently. Which is exactly what Mr X has done.

(Now, there are a few overriding rules, of which the most obvious is the legal right of the spouse. But in this case we are looking at the rights of Mr X’s brothers and sisters, and his brothers-in-law and sisters-in-law, and they don’t benefit from any such legal right. So we can ignore that here.)

But now comes the complication: Mr and Mrs X had what’s called a contract for mutual wills; each agreed to make a will in particular terms in consideration of the other making a will in (the same) particular terms. And, as will come to light after the car smash, Mr X welched on that agreement and made a different will.

It seems to me that the aggrieved brothers and sisters could argue that Mrs X was induced to make her will (or, if Mr X’s change of mind genuinely came later, induced not to change her will) by fraudulent conduct on the part of Mr X - he pretended he was disposing of his estate in a particular way, when in fact he had made a will disposing of it differently. And on that basis, they may try to get Mrs X’s will set aside as being induced by fraud, and have her treated as dying intestate, and as her next of kin they may claim the whole of her estate, and not merely 80% of it. Plus, they would still claim 50% of Mr X’s estate under Mr X’ will, because that was not induced by fraud; Mr X knew exactly what the position was when he made that will, and nobody deceived him.

Mr. X’s brother will probably respond by saying that there was no fraud involved, and that when Mr and Mrs X made their mutual wills they were both advised by the solicitor that each was free to back out and make a different will later. And he will call as witness the solicitor who acted on that occasion (who will be very embarrassed, and may face a negligence action, if it turns out that he failed to point this out to both Mr and Mrs X).

And Mrs X’s brothers and sisters will respond to that by saying either (a) no, Mrs X was not told that (if that is what the evidence shows) or (b) yes, Mrs X was told that, but it was still implicit in her agreement with her husband that if he did back out he would tell her, and it would be unconscionable to allow Mr X’s brother to benefit under Mrs X’s will when his interest under that will was obtained by such a deception.

The costs of thrashing all this out in the High Court all this will, of course, consume a fair part of one or both estates.

Hard to say how the whole thing will end (assuming the money doesn’t just run out). In my view the odds favour Mrs X’s will being set aside, so her siblings get the whole of her estate plus 50% of his, but of course the two estates will not necessarily be of equal size. But the outcome will depend a lot on the evidence of the solicitor who made the mutual wills about what he said to the two of them about the possibility of later changes of mind. Which is why he should give his advice in writing and keep a very clear record of it, and if possible get the parties to sign a memorandum of the terms of their agreement to make mutual wills.

desbrook

Thanks for that Pergrinus - a very comprehensive answer !

The 30 day clause you mention throws up a few strange scenarios too . If lets say one of the offspring were married and survived the initial crash but died on the 30th day or subsequently .On the day of his death he has presumably inherited everything . His wife can subsequently inherit it all tax free as a spouse presumably ?

If the son dies less than 30 days later his wife would at least have to pay inheritance tax or is she "next in line " ?

December2012

Commorientes clauses usually only apply to the testator/rid and their spouse.

It is usual that a child alive at the time of death, if he dies later then his provision survives. Also see the rules on issue.

December2012

desbrook wrote: »

Thanks for that Pergrinus - a very comprehensive answer !

The 30 day clause you mention throws up a few strange scenarios too . If lets say one of the offspring were married and survived the initial crash but died on the 30th day or subsequently .On the day of his death he has presumably inherited everything . His wife can subsequently inherit it all tax free as a spouse presumably ?

If the son dies less than 30 days later his wife would at least have to pay inheritance tax or is she "next in line " ?

Also the wife is only inheriting the sons entitlement to the estate - his estate takes a share of his parents estate subject to CAT, she inherits his estate with no CAT liability from him.

Peregrinus

December2012 is correct that comorientes clauses usually only apply to the testator and spouse; I understood the question as postulating an unusual clause covering testator, spouse and kids.

Even with a standard comorientes clause covering only the spouses, if in fact the whole family were all killed in a smash and it was not possible say who died first, the Succession Act presumption would apply and the kids would be deemed not to have survived the parents. The estate would go to the kids, and then to the kids’ next of kin, only if the kids can be shown to have survived the parents. If that does happen, I agree with December2012 about the CAT position.

Desbrook’s point about the 30-day limit for the comorientes clause being a bit arbitrary is correct. But any limit is going to be a bit arbitrary, and a comorientes clause has to have some limit. In most cases, if there is an incident in which some people die instantly and others die of injuries after a short time, even the latter group will die within 30 days. Anyone who survives by a month has a good chance of being round for quite a while (and will have big medical bills, so could use the inheritance!) 30 days is standard for comorientes clauses, in my experience.