Suzanne Whyman, Barker Gotelee
Farming and the Law: Suzanne Whyman of Barker Gotelee on the importance of making a will
Friday, February 17, 2012
5:53 PM
IT IS essential for a farmer, perhaps more so than anyone, to ensure that he (or she) has a will disposing of the farming assets (commonly in the farmer’s sole name) to the right people on death.
This is because, often, one of the main concerns is that the farming business will be able to continue after he has died.
When a person dies without a will, he has died “intestate” and his estate is distributed under the intestacy rules. In December 2011, the Law Commission published its final report of recommendations to reform intestacy law after deciding that the current law is outdated and sometimes confusing.
Two of the recommendations relate to the entitlement of a widow(er) (or surviving civil partner) on intestacy and the rights of unmarried couples who live together.
At present, if a married couple have no surviving children (or grandchildren, etc.), the entitlement of the widow(er) depends on which other relatives survive the deceased. If there are no parents or siblings, the widow(er) takes the whole estate outright. If there are parents or siblings alive, the widow(er) is entitled to all of the deceased’s personal possessions, a fixed sum of £450,000 and half of what is left in the estate outright. The other half of the estate passes to the deceased’s parents equally, or if none, then the siblings take this instead.
The Law Commission now recommends that the law should be changed so that if the deceased dies leaving a widow(er) but no children, the widow(er) should take the entire estate, regardless of which other relatives survive the deceased.
If a married couple have children, the widow(er) is currently entitled to the deceased’s personal possessions, a fixed sum of £250,000 and a life interest in half of the remainder of estate (a right to the income, but no right to the capital).
Under the new recommendations, the Law Commission suggests that the rules should be simplified where there is a widow(er) and children, so that the widow(er) takes the fixed sum, as at present, but also half of the remainder outright, instead of on a life interest trust, so that the widow(er) is entitled to the income and capital of half the remainder.
The report also suggested that co-habitees should be given a right to their partners’ estates on intestacy and has suggested that long-term co-habitees, or those with children who have lived together for two years, should be given the same rights as widow(er)s.
It is critical that everyone, especially farmers or those with complicated estates, has a valid will in place and keeps this under review.
