Making a Will is Just as Important for the Younger Generation.

The headlines are currently full of the news that Liam Payne, of One Direction fame, died leaving a £24 million estate without preparing a will.

With much of the focus on the distribution of the wealth in his estate, there are a number of other considerations raised by the circumstances of his passing, and his not having prepared a will, that we will discuss in this blog.

Intestacy Rules

Given that Liam did not leave a will, his estate passes under the intestacy rules, a set of statutory rules which govern the distribution of a deceased’s estate. As such, it is likely that the estate will be held on statutory trust for Liam’s son Bear until he reaches the age of 18 years.

At the time of his passing, Liam had been in a relationship with girlfriend Kate Cassidy for two years, and the couple lived together. It has also been reported that Kate and Liam had plans to marry.

It is a common misconception that couples who cohabit are ‘common law’ spouses and thus within the contemplation of the intestacy rules. However, this is not the case; even if a couple has lived together as man and wife for many years. Cohabiting couples can therefore not rely on the intestacy rules to make provision for their non-married partner, without making a will to specifically leave assets to them.

Given this, Kate has been left nothing from Liam’s estate, which may not have aligned with his wishes.

The Inheritance (Provision for Family and Dependants) Act 1975

In the absence of ‘reasonable’ provision being made for a person or persons, who may otherwise have expected an inheritance from a deceased, a claim can potentially be made under the Inheritance (Provision for Family and Dependants) Act 1975 for certain categories of people, including spouses, children and step-children, cohabitees and / or financial dependants of a deceased, amongst others. Such parties would be able to make a claim against the estate whether there was a will, or if the estate was being distributed in accordance with the intestacy rules.

Unfortunately, this legislation would not come to the assistance of Kate, who was not domiciled in England and Wales at the time of Liam’s death.

Guardianship

Liam leaving a minor son also raises another important point; that of guardianship.

Under the terms of a will, a person can appoint guardians to look after their minor child or children on their death, in the event there is not another person with parental responsibility available (for example, if the deceased is a single parent, or both legal parents pass away together or in short succession).

In the absence of an appointment of guardians under a will, and where there is no surviving party with parental responsibility, the Court will intervene to appoint a guardian for the minor child.

Clearly, this process has the potential to cause stress and uncertainty for the child at a time where they will already be grieving the death of their parent or parents. The child may also end up living with a person who the parent would not otherwise have chosen.

Grants of Representation in Estate Administration

When a person has passed away, it is usually the case that the various institutions holding the deceased’s assets will need proof of who the legal representative or representatives of an estate are in order to release funds. This is done by way of a grant of representation issued by the Probate Registry. The application process and the grant issued would depend upon whether or not the deceased left a will.

A will names executors of an estate, chosen by the person making the will, who will apply for a grant of probate in the estate in the event of that person’s death.

In the absence of a will, the intestacy rules also govern the order in which people can apply to be administrators of a deceased’s estate. Once appointed, they will then be able to apply for a grant of letters of administration.

Unfortunately, unmarried partners are not able to be appointed as administrators of a deceased’s estate. Therefore, in the absence of a will, it may be that people are appointed to administer an estate who are not appropriate in the context of the deceased’s personal and family circumstances

As the mother of Liam’s minor son, Liam’s ex-partner Cheryl Cole has been named as Liam’s administrator, together with a lawyer named Richard Bray. Whilst Cheryl and Liam were reportedly on good terms at the time of his passing, with a healthy co-parenting relationship, this is often not the case between ex-partners. It is more luck than judgement that Cheryl’s appointment as an administrator was a positive outcome in this case.

Lasting Powers of Attorney

Putting aside matters relating to the will and estate administration, and given the manner in which Liam died, it is worth considering what the position would have been if he had survived his fall from the balcony, but had lost the capacity to make decisions relating to his property and finance or health and welfare affairs.

Given that Liam did not prepare a will, we can assume that he also did not prepare lasting powers of attorney (‘LPAs’).

LPAs are documents under which a person can appoint trusted persons (‘attorneys’) to make decisions in relation to their health and welfare and / or property and financial affairs, in circumstances where they are unable to do so themselves. LPAs can only be prepared where a person has capacity to instruct in the preparation of the documents and cannot be prepared once capacity to make decisions has been lost.

Without an incapacitated person having LPAs in place, a deputyship application would need to be made to the Court of Protection on their behalf to appoint a deputy to manage their affairs. This process is both lengthy and extremely costly, and may result in the appointment of a person who the incapacitated party would not have chosen to manage matters on their behalf.

Repatriation and Funeral Wishes

Given that Liam died in Argentina, the issue of repatriation (bringing his body back to the UK) bears consideration.

Repatriation can be a complicated and lengthy process; involving informing the relevant authorities of the death; obtaining a death certificate in the relevant country (together with a translation if necessary); obtaining the necessary repatriation documentation and organising the logistics of returning the body itself.

Ultimately, as Liam passed away without leaving a will, the issue of where his body should be laid to rest was left to his family. However, whilst Liam was born in the UK, he was living in Florida with Kate at the time of his death.

In the absence of his documented wishes, we will never know what Liam’s thoughts were, in respect of where he would want his final resting place to be; potentially making an already devastating time for his family all the harder as they wrestled with the question of what Liam would have wanted.

Whilst funeral wishes in a will are not legally binding, they can provide some comfort to those left behind, as they provide reassurance to the deceased’s family and executors that they are laying the deceased to rest in the manner in which they wanted.

How We Can Help You

We at Lanyon Bowdler have an experienced and knowledgeable Private Client Team, who are happy to assist in the preparation of wills and lasting powers of attorney, as well as your wider estate planning objectives.

If you would like to discuss your circumstances and wishes, please do not hesitate to contact our friendly team.