The Childless Couple And The Importance Of Making Wills

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They had made wills ten years earlier which left everything to the surviving spouse but made no provision for how the survivor's estate should be distributed.
UK Family and Matrimonial
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The recent High Court judgment in the case of Davey v Bailey concerning alleged deathbed gifts highlights the need for couples without children to make wills to ensure that their estates will ultimately be distributed in accordance with their wishes. Devorah Ormonde, a partner in the Private Client department, examines the facts of the case and its practical implications.

Alan and Margaret Bailey were a married couple who died within months of each other in 2019 both aged 71. They had made wills ten years earlier which left everything to the surviving spouse but made no provision for how the survivor's estate should be distributed. Mrs Bailey died first and although Mr Bailey had met with the solicitor who had prepared their wills with a view to making a new will after her death, by the time he died he had not given instructions as to exactly who he wished to benefit. The only decisions that he had communicated to the solicitor were that he wished his nephew Leslie and his wife's niece Caroline to act as executors and to leave his butcher's shop to Leslie.

As Mr Bailey had not made a new will before his death, the whole of his estate passed under intestacy laws to his two surviving siblings and the three children of his sister who had predeceased him. His wife's family, who received nothing, argued that the couple had made three deathbed gifts which should be upheld. Much of their case was based on the Macmillan Cancer Support checklist for planning ahead which Mrs Bailey had completed following her final discharge from hospital.

However, although Mrs Bailey was ill with cancer and may well have been contemplating her own death at the time she wrote the note, it was clear that she never intended the gifts to take effect until Mr Bailey's death. Indeed, she had also written that he would need to make a new will. Mr Bailey had been in good health at the time and his death of a heart attack was unexpected. The court therefore held that he could not have foreseen that his own death was imminent when Mrs Bailey wrote out her wishes and so none of these gifts met the strict requirements for a valid deathbed gift. This meant that despite the fact all parties accepted that Mr and Mrs Bailey had intended to benefit both families on the death of the survivor of them, the whole of the estate passed to Mr Bailey's family.

The fact that both Mr and Mrs Bailey were acutely aware that the survivor of them would need to make a new will makes this case particularly sad. Whilst it can be difficult for a couple without children to decide how their estate should be shared out on the second death, the task does not get any easier after the first death. It is also conceivable that they could both die together so there would be no opportunity for the survivor to make a new will anyway. There will be very few situations in which the requirements for a valid deathbed will would be satisfied so it is important to ensure that wills are made and updated as necessary. For a childless couple who are leaving their assets to the survivor it is particularly critical to ensure that they reach a joint decision on how their combined assets should be distributed on the second death which is then incorporated into both wills. Otherwise, as with the estate of Mr and Mrs Bailey, everything may pass to the family of the survivor.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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