Should a Last Will and Testament be a legal requirement?

Published: 11/01/2013

In 2010, 30 million people died without making a Will. As a consequence, £53m in inheritance went to the government. With such shockingly high numbers and the fact that over half of the current population in England and Wales don’t have a Will we’re asking - should people have to make one?

Due to a constitutional law dating back to medieval times Prince Charles, in his role as the Prince of Wales, is entitled to the estates of people who die intestate (without a Will) in Cornwall. As a result he has received over £1m in the last six years alone. He has, however, donated the money to charities for the past 40 years.

There remains an overwhelming belief that when we die our loved ones will automatically inherit our assets, therefore making the need to write a Will moot. However in many cases loved ones do not inherit what we would have wanted or expected them to. This can even extend to partners, children and grandchildren and demonstrates just how important making a Will is.

Surprise outcomes, vulnerable loved ones

If a person dies without a Will, the Rules of Intestacy are applied to their estate. These are a series of questions asked in order to determine who inherits the estate. Download a copy

If you are married and had an estate worth less than £250,000, your spouse or civil partner gets it all regardless of if you have children and/or grandchildren. This can be of particular concern to someone who has had children from a previous relationship as your current spouse is under no obligation to share your estate with them.

On the other side of the fence, if you are not married but are in a relationship with a partner and have children – either with them or from another relationship – it would be your children who inherit everything; your partner, regardless of the length of time spent together, would receive nothing. In fact, if you are not married the government would inherit your estate before your partner! Their only hope would be to make a claim against your estate – which could, in reality, be a claim against their own children!

Making a Last Will and Testament a legal requirement could offer a solution but there are legitimate concerns over how it could be enforced and how failure to comply would be punished. You would not be able to fine the deceased so would you fine the estate instead? This itself would contradict the primary aim of such a scheme.

Instead the emphasis should surely be on making people aware of the responsibility they have to support and maintain their family and loved ones when they themselves are no longer around to do so and associated risks to their loved ones if they failed to do so.

Content correct at time of publication