Elderly Aunt, No Will

[r-englefield]

Can anyone please clarify,
My aunt is 95 all her brothers and sisters have passed away she has 10 nephews and neices. She has not made a will although we have all asked her to but says she has left money for us in the bank. Because only 3 of us look after her she does not want the others to benefit and she has written down on paper who and how much she wants to give but I said because there is no will it will be divided to the 10 of us. My cousin said because we are named with her doctor we are her next of kin and it will come to us to sort out our aunts wishes. Who is right please?

[daffy654]

You are. It will be split equally unless a will specifies otherwise.

[Old_Geezer]

Just an uniformed opinion from me but I don't believe being named with the doctor will make any difference. I believe there are relationship rules which are adhered to.

[woofgang]

I agree. If there is no will, your aunt dies intestate and the intestacy rules kick in.

[dzug2]

The legal situation is that it is divided according to the laws of intestacy - assuming you have listed the only relatives then equally between the 10 of you. If the aunt wants it divided any other way she must make a will

'next of kin' is irrelevant.

[Barmaid]

Yes, you are correct. Because there is no Will, the estate is dealt with under the laws of intestacy. Thus the estate will be divided into the same number of shares as your aunt had brothers and sisters. Each nephew and niece will share what their parent would have had. (eg, say aunty had two brothers Albert and Bob) Albert had 3 children and Bob had 4. The estate will be divided in 2 and alberts kids will get 1/3rd of 1/2. Bob's kids will get 1/4 of 1/2. So Alberts kids get 1/6th of the estate each and Bobs kids get 1/8th each.

Because there is no executor appointed, any one of the neices or nephews can apply for the Grant to sort out the estate.

[FredPuli43]

Just as well that whoever is named with the doctor is not 'next of kin'. When my great-uncle died, the family discovered that his housekeeper had put herself down with the hospital as his sole next of kin ! She was not, of course, related to him in any way, though she had apparently been putting it about that he was.

Your aunt must make a will. You are right about what happens if she doesn't. Making one makes her wishes clear and enforceable..

[Peter Pedant]

Yeah I agree with the lawyers.
save yourself £200/hr

Non cupative wills - that is the technical term for what your aunt is trying to do were made invalid by the 1837 Wills Act. So I am afraid the old girl is living in another century - the eighteenth to be exact. Next-of-kin they say apparently is the very last vestige of the old pre 1837 system and is now irrelevant. I am doing the history because everyone else has done the law which is straightforward.

I wonder if her grandfather made a non cupative will - she obviously has got the idea from somewhere.

and lastly
2/3 of the population havent made a will and your dear aunt is one of them. My own contribution to this is to observe: at least some of them (perhaps all) have DECIDED not to make a will - because of the quarrelling it will engender.


Oh and Freddie's point - no one checks in the hospital whether the next of kin...er is. I put my partner down as my cousin and no one ever said hold it you have a brother, more than one......

[dzug2]

But not making a will can also cause quarrelling - over what the laws of intestacy are and how unfair they are and about exactly what the Administrator is and isn't entiled to do.

You can't win

[woofgang]

I read it that PP was saying that the deceased WANTED to cause quarrelling.

[FredPuli43]

And, I think, PP means " nuncupative will" , that is, a will made orally rather than in strict written form. The Wills Act 1837 s.11 did preserve the right of any soldier or seaman to have a will which was in any form accepted before the passing of that Act. It's proving the devil's own job to find chapter and verse for what form that was. My recollection is that soldiers could write their wishes for the disposal of all of their property on their death in their paybook and that this was treated as a valid will, regardless of the age of the soldier and regardless of the lack of other formalities. Further, I'm pretty sure that a declaration made orally to someone was equally valid, provided that the 'testator' was in action, in battle conditions. Thus "If I don't make it, make sure everything goes to my mother" was valid on the death ensuing in battle.

[Barmaid]

Known as privileged Wills. Provided for in Statute of Frauds Act 1677 and class enlarged in Wills (Soldiers and Sailors) Act 1918.

I don't think it needs to be battle conditions, Fred. On active military service or at sea for a sailor is enough. The latest case I can find is Jones 1981 where on patrol in NI a soldier said to his officer "If I don't make it, make sure Anne gets all my stuff".

[r-englefield]

Thank you for all your replies it's much appreciated.

[FredPuli43]

And even the Statute of Frauds 1677 only says that notwithstanding [the rest of the Act] a serving soldier or seaman may dispose of his personal property etc in any manner approved before the passing of this Act. It doesn't say what those manners were ! We are supposed to know. Evidently the common law had laid down common sense provisions for nuncupative wills by such people (and which are preserved still)

The Act makes amusing reading. It says , because nuncupative (oral) wills had been the cause of much perjury, that such a will was not valid in the case of a final sickness unless the testator was at home when he made it, or had been surprised in his terminal sickness when on his way home, or had been resident at least ten days in the place where he made it. This conjures a picture of ailing testators being kidnapped by relatives, kept away from their servants and other witnesses who would speak to their wishes, and made the subject of perjured evidence where they were held.

[Peter Pedant]

.

yes indeed nuncupative
clearly i was reading late at night and with a glass of vino in attendance


Yes indeed my thought were triggered by some old boys last words:
Ah there will be quarrelling over the farm now !

and it struck me that a lot more might be thinking it without saying it

[Peter Pedant]

Oh the pre-1837 text of choice on common law wills is apparently
Swinburne on Wills 1740.

There is a comparable text on the internet and is a truly terrible read.

I got interested from the Genealogy point of view
as in I have a will of an ancestor from 1715, what does it really mean ?

[Barmaid]

PP, I have wills from ancestors from the 1600s (strangely, I also have a Will from 1715). The SoF 1677 only dealt with personal property though as far as i am aware and not real property. Real property has been dealt with in writing by deed for a helluva long time. Hence the whole trust thing.

I've never really researched the whole thing - although this is an area of interest which I intend to do when I retire!

[FredPuli43]

Ah, the famous section 4 of the Statute of Frauds. Every law student knew of it, few actually read it, but it meant, in effect, that you could sell a piece of land by writing a description of it, putting the price, and both parties signing. So you could sell 5,000 acres on the back of an envelope, because the paper was an enforceable memorandum, a provision replicated in the Law of Property Act 1925. My late father, faced with a farmer, a vendor who didn't trust lawyers (how strange), did exactly this to buy a farm. His own solicitor, presented with this scruffy bit of paper, was horrified, but the conveyancing was done.