There is nothing so likely to induce a murderous rage in the most mild mannered of people as sibling rage over a last will and testament. Many a family can cite feuds going back over generations, centuries even, which commenced with the reading of the will.
As children we prise precious pennies out of our parents in the form of pocket money; it is never enough to encompass all our dreams of ownership. It might stretch to the Action Man Kit – but not to the full range of available extras. We dream of the day when the family piggy bank will be under our control, and somehow, we never grow up.
We reach 50, 60, and still we imagine that the money and property our parents accumulated should really be ‘ours’. We deeply resent anyone else having a say in how it should be spent. Especially siblings.
We can just about cope with the notion of our parents having the right to go on spending their money on food and a roof over their head – but just let social services step in and demand that the money be handed over to a care home and the high pitched wailing starts. ‘That’s my inheritance, mine I tell you. The state should be feeding Mum and Dad, not my inheritance.’ The nursery tantrum surfaces.
If Mum and Dad have departed this mortal coil then their final words in the form of their last will and testament bite deep. Proof positive bubbles up that they really did love little Johnny more than me – look he’s loaded and they’ve left him the money to buy the Action Man accessories – it’s not fair….Waaaaaah! Christmas Cards cease to exchange, cousins cease to kiss, and yet another family is rent apart.
There is another scenario, relatively unusual, which can cause even more hurt and upset. It was the first one which came to mind as the meagre details of the Cumbria shootings first emerged.
He shot his brother and then the family solicitor? His brother and the solicitor were ‘drawing up a will for his Mother’? His Mother had suffered a number of strokes and was ‘unwell’. The hackles rose on the back of my neck – was a ‘Statutory Will’ in the offing?
I don’t know, I am merely speculating, I have no inside information that leads me to believe that it was thus. It does however, give me the opportunity to beat you over the head yet again, and discuss the ramifications of a Statutory Will for those who have not yet given in to my nagging and protected themselves from the effects of the Mental Capacity Act 2005.
The idea of a Statutory Will was well intentioned. Let us take a ‘for example’. Young Tristan is gay. He fell out with his parents long ago and left home to live with the nice young man who manages Curry’s. He is convinced the Curry’s manager is his partner for life and makes a will leaving him his Dolly Parton wig and all his worldly possessions. So far so good.
Unfortunately, Tristan is hit by a bus. He doesn’t die, but survives as a severely brain damaged individual who requires support and supervision for the rest of his life. Young Master Curry doesn’t fancy the job and departs for pastures new. I make no condemnation of this action – it happens all the time, regardless of who the partner is. It is a very difficult thing to do – to nurse someone who bears no resemblance to the person you fell in love with. Eventually Tristan is declared physically fit to leave hospital, and who comes to the rescue? His parents usually. Past enmities forgotten, they collect Tristan, reorganise their home, neglect the rest of the family, and devote themselves to Tristan’s complex needs. For the next 20 years or so.
Is it right that Tristan’s original Will should stand when he does die? Had he been able to make another Will, he hopefully would have recognised that his allegiances had changed, that the family quarrel was over and done with, that young Master Curry hadn’t been seen for 20 years, and perhaps leaving his worldly goods to his family might be more appropriate now.
That is one side of the Statutory Will – but peek underneath and you will find a darker side.
It is the responsibility of the ‘Deputy’ to word the new will. The court merely approves or disapproves the contents. They don’t put forward suggestions as to who the beneficiaries might be. It will approve it unless drastic evidence comes forward to persuade it not to.
We must look at who is the ‘Deputy’, and how and where could ‘evidence’ come from.
The Deputy could be a member of the family. A brother, a twin brother, a son, daughter or parent. One of the most difficult situations arises when the ‘Deputy’ is in fact the Mother or Father of a child who has reached the age of maturity. Imagine having to write a will for your child – which you must then post off to an anonymous ‘court official’ telling them that with your ‘Deputy’ hat on, you wish your child to leave all their money to ‘you’ – with your parent hat on. People agonise that they will be thought greedy or grasping, when in truth the ‘court official’ is a monumentally bored civil servant who has processed several such applications that week and has no ‘opinion’.
The ‘Deputy’ could equally be an older brother or sister who has strong views regarding the behaviour of other siblings. Have they perhaps not pulled their weight in caring for the person concerned? Are there old ‘scores’ to be settled? Do they have a lifestyle which is disapproved of – heavy drinking, gambling – is writing this will a chance to gain control over their life?
Since the court doesn’t normally meet any of the people concerned except in very rare circumstances, they rely on the reports which may have been written by the Lord Chancellor’s Visitors to evaluate the fairness of the proposed new will.
Only some 20% of the ‘patients’ of the court will ever have been visited by the Lord Chancellor’s Visitor, and the report will have been written many months if not years beforehand – certainly not with the knowledge that a Will may be based on the information contained in it, excepting very, very rare circumstances.
If we return to the example of Tristan, it could be that young Mr Curry did stay by his side and has nursed him devotedly. It could be that he was never mentioned in the original will, or that there was no original will. If the parent’s are the Deputies, the system relies on their honestly and integrity to tell the court that – much as they disapprove of their son’s relationship – they believe if their son was able to make his own will today, that he would want to reward young Mr Curry’s devotion. Is there any system in place to ensure that they do act with integrity and honesty and say that?
Which is why, when I heard that Derek Bird had shot first his brother, then his Solicitor, in a dispute over a will, despite his Mother still being alive following a devastating stroke, I wondered. We have been told that Derek lived at home and his Mother had given him substantial sums of money. We have heard that he drank heavily and dealt with his money unwisely. We have heard that his twin brother was the ‘sensible’ twin and close friends with the unfortunate solicitor……
And I wonder.