The Death Conference – my talks
Following on from my earlier blogs, I was very honoured to be asked to Wendy Coulton’s “Elephant in the Room” event at Plymouth Central Library on North Hill on 27 & 28 March 2015.
The purpose of the conference was to get the conversation going about death, that death and dying is part of life, and that we should talk about it more or even at all in some cases.
Wendy asked me to speak twice, so after discussion with her, we agreed that I would split up my talks into pre-death and post-death legal issues.
So what did I say in my post-death talk. I gave a run through of what would happen in a straightforward situation and then started to look at what makes the circumstances more complicated. Starting with a Coroner’s Inquest, they can be for all sorts of reasons, but locally amongst the reasons can be death related to working in the Dockyard, as there was asbestos in the Dockyard in the past. Or it can be because of an unexplained death, so if someone dies from an illness and they have not seen their GP or other medical practitioner then the death is considered “unexplained”. Sometimes they can be death with via a post mortem, but on occasions, so Inquests require a hearing and this is a chance for the family to be heard. I would suggest that legal advice is sought in that circumstance. The Coroner issues “Fact of Death” certificates, which are not the same as Death Certificates, which is some cases does not hold up the administration of the estate, but in other cases it does, as some assets will not pay out unless there is a cause of death.
If the estate is contested in some way, that will cause the administration of the estate to be held up whilst the dispute is resolved. Some of these claims are about “sorting out a deal”, so if one party is at a financial disadvantage and needs money, the may be in a weak bargaining position and end up settling for less than they might otherwise have got. This is where the litigator will help to sort out the end result.
There are a number of reasons why an estate could be contested, which includes challenging the Will, because for examples someone claims that it is a fraud or because they claim that the testator lacked capacity when they created / signed the Will. There are also legal challenges of “want of knowledge and approval”, which is linked to lack of capacity and it is also linked to “undue influence”, another potential challenge. Undue influence is hard to prove, as suggesting something to someone and that person thinks the suggestion is a good idea is very different from doing something against your will, as the person suggesting it is so overwhelming in their insistence that it is a good idea. It is for this reason that undue influence claims are more often won on want of knowledge and approval than undue influence, which is hard to prove.
The next way that an estate can be challenged is by a claim for “reasonable financial provision” by a financial dependent. There are 2 categories of claimant, a spouse and everyone else. The amount that a person should leave to their spouse is different level of support than anyone else, so there is a higher standard to support for them. Anyone else can include children, but an important category of person is the partner they live with, but have not married, without a Will, the rules of intestacy would not benefit a partner, even though they live like a spouse, which leaves the surviving partner having to make a claim against the deceased estate.
Intestacy can cause issues, but not always, sometimes the rules work out and might be what the deceased would have wanted or almost what they would have wanted, but not always and beneficiaries can row.
My key message at the talk, was that sometime these things happen, but try not to let them happen as it is in this scenario that the lawyers get rich!!
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