Something like 7 out of 10 people do not have a Will.
There are lots of reasons why you are unlikely to have made a Will.
This post tells a story which might convince you to take action and make a Will, if you do not have one.
The details are fictional but are based on fact situations we have dealt with in practice.
Maggie and Tam – cohabiting couple
Maggie had been separated from her husband for several years when she met her partner, Tam, through a mutual friend in 2002.
Maggie lived in Moray and Tam was based in the Borders.
After a year or so, they decided to move in together, Tam finding a job with a haulage company in Moray.
They bought a house using, as a deposit, money Tam had saved.
Tam had never been married and had no children. He formed a great relationship with Maggie’s three children – and two grandchildren born during the years after he and Maggie got together.
Maggie, in turn, enjoyed the company of Tam’s brother and his parents. They went on foreign holidays together. When Tam’s mother was terminally ill, Maggie and Tam made frequent visits, even though she was in hospital in Glasgow. They were at her bedside when she died.
Fatal accident and aftermath
In May 2010, Tam was killed in a road accident.
He was driving his lorry when it was in collision with another HGV. The accident was the fault of the other driver.
Maggie was devastated by Tam’s death. They had lived together for nearly 7 years.
Tam had not left a Will. His father and brother consulted a Glasgow solicitor and they were appointed as Executors to Tam’s estate.
The house was in Tam’s name only.
In fact, Maggie could not bear to live there herself and moved out within a few months.
Nevertheless, she was upset that she was not kept informed about the sale of house through the estate.
She had a disagreement with the Executors, who accused her of removing furniture belonging to Tam when she moved out – which was not true.
Maggie had never divorced. She had remained on friendly terms with her husband. She had intended to get divorced but there was no property to divide and no urgency otherwise, so she had never got round to it.
A claim for damages against the insurers of the other driver …
Sadly, fatal accidents do happen.
In this case, Tam’s death was due to the fault of another person.
In those circumstances, as a cohabitee, Maggie was eligible to make a claim for compensation for “loss of society” from the motor insurers of the other driver. She consulted a solicitor and it was possible to settle the claim by negotiation.
… And a claim for financial provision from Tam’s estate
She also had a claim against Tam’s estate.
Since the Family Law (Scotland) Act 2006 came into force, it has been possible for the cohabitee of a deceased person to make a claim on their estate providing there is no Will in existence and the claim is made within 6 months of the date of death.
It was necessary to raise a court action against the Executors because of the time limit. (The 6-month time limit has been criticised as being too short. The total value of a deceased’s estate is not known within 6 months of the death in many cases.)
In their written case, the Executors used the fact that Maggie was still married as evidence against her, though it could not prevent her making a claim on the estate. They called into question the quality of the relationship between Maggie and Tam and whether it was likely to have lasted much longer in any event.
It was possible to settle Maggie’s financial claim on the estate before the case got to the stage of a full court hearing. That was some consolation but it was all a bruising and demoralising experience for Maggie on top of the loss of Tam – and the home they had shared.
The legal background and the issue for cohabitees
Where someone dies as the result of an accident, their relatives (including a cohabitee) will be able to make a claim for compensation provided the accident can be proven to be the fault of someone else.
Whether a claim for fatal accident compensation can be made or not, the relatives of the deceased can make a claim on any estate he or she has left behind – which can include a house, bank accounts, life polices and many other types of assets.
The way in which any claim on the estate is made will depend on whether or not the deceased had made a Will. For married persons, you will generally be able to make a successful claim even if either your spouse has made a Will and not left anything to you in the will (through claiming Legal Rights) or your spouse has not made a Will at all (in which case you are covered by the law of intestacy).
In most long-term relationships, there is an unspoken understanding that, when one of the partners dies, the other will inherit all or at least a fair share of their deceased partner’s estate. But that will not be guaranteed to happen unless you make a Will.
Remember Maggie’s Tale
You could say that Maggie was “lucky” in that she was able to make successful claims against both the insurers of the other driver and against Tam’s estate. If the accident had been Tam’s fault, the insurance claim would not have been available. If Tam had had children of his own, Maggie’s claim on the estate might have been minimal.
Against that, the lack of a Will probably resulted in a lot of additional and unnecessary heartache.
It’s unlikely Tam’s family would have objected to a Will which left everything to Maggie. But with no Will in place, a dispute with Tam’s family was always on the cards. Through their shared love for Tam, Maggie and the Executors (Tam’s family) could have supported each other in their bereavement but, instead, their relationship was damaged beyond repair.
Get in touch with us for help
Grigor & Young’s website has practical information about the actions required after someone’s death.
If you have any questions arising from this article or you would like to make an enquiry regarding any aspect of our legal services, feel free to contact us for a chat. It’s free of charge and without obligation. You can call us on 01343 544077 or submit a Free Online Enquiry to us.
