Island knowledge, national expertise

Failure to Make a Will Triggers Family War Reminiscent of Greek Tragedy

Failing to make a professionally drafted will positively invites disputes between your loved ones that can take on the proportions of an ancient Greek tragedy. As a High Court case showed, such discord can even extend to the disposal of your body.

The case concerned a father of six who died suddenly in England at the age of 45 without making a will. He left a partner who was then pregnant with their third child and who also cared for another child of his. His two other children, including his only adult offspring, a daughter, lived in France. His partner wished for him to be buried in England, but the daughter was adamant that he should be interred in France.

Due to the fact that he and his partner were not married, under the rules of intestacy the right to take out letters of administration in relation to his estate would ordinarily fall upon his daughter. That would usually entitle her to choose the place of his burial. The partner, however, characterised that position as an example of the law failing to keep up with changes in society.

Describing the man as the love of her life, the partner wanted him buried close to her home in England so that she and the four of his children in her care could regularly visit his grave. However, the daughter said that he had, prior to his death, confided a wish to be buried in France, in the same vault as his mother.

The case hinged on an entry in the man's journal in which he expressed his desire to be buried in his country of permanent residence. Despite the daughter's assertion that it was a forgery, the Court found that it was in his own handwriting and genuine.

Directing that he should be buried in England, the Court found that his closest connection was unquestionably to this country. Although his French family was part of who he was – he was a devoted father and much loved by his friends and all members of his family – he had lived in England for the last 13 years of his life and had chosen to make his permanent home here.

Despite the position under the intestacy rules, the Court exercised its exceptional power under Section 116 of the Senior Courts Act 1981 to make a limited grant of letters of administration to the partner so that she could make arrangements for his burial in this country. Noting that this was a family that needed to come together, the judge directed that the children in France should be given as much notice as possible of the date and location of the funeral.

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The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.