Perils of not making a Will

27 December 2012

If you do not make provision for how you would like your estate to be divided on your death. your estate passes in accordance with statute under the so-called intestacy rules and any variation made in relation to this should be correctly recorded and documented, following legal advice. 

The perils of not distributing an estate in accordance with the law when there is no Will, has been highlighted in the press recently when a son was jailed for sharing his father's compensation monies.

The father had worked with asbestos, which resulted in him contracting a fatal illness. Before the father died, he told his son that if any compensation was paid as a result of his working with asbestos he wanted it to be shared equally between the whole family, including his three sons and grandchildren.

The father sadly died in 2001 and the compensation payment of £90,000 was paid some time later in 2005. In the meantime, the wife had been admitted to a care home, suffering with Alzheimer's disease. The care home was funded by the local authority as she had little savings and no property. She was bed bound and could no longer recognise her own family, as such the son in question had control over her affairs through a lasting power of attorney.

When the compensation was received, the family agreed that the funds should be split in three ways between each of the brothers and their children, just as their father had requested.

However, this decision resulted in a benefit fraud charge and, upon being found guilty, a prison sentence as he was unable to repay the monies received – not just by him but to the sum of £58,000. Whilst no longer in prison, he is still paying back the debt, which carries a monthly interest of £400.

Had the son received legal advice at the time when dealing with the payment as part of his father's estate, or his ability to make such a decision acting as an attorney under a Lasting Power of Attorney, this unfortunate incident could have been avoided.

For advice on your role and responsibilities whilst acting as an attorney, or in dealing with the estate of a person who has died without a Will (intestate) please contact us on 01245 493939 or email

The above is not legal advice; it is intended to provide information of general interest about current legal issues.