What Downton Abbey can teach us about dying without a will

Where there's a will, there's a way.

Downton Abbey devotees and law students alike must have heaved a collective sigh of relief with the return to our screens of that compulsive lesson in legal history, cunningly disguised as a period costume drama.

Those who have not been drawn into the mystery and intrigue of the occupants of Downton Abbey, who seem to have suffered more communal misfortune than one would reasonably expect of an extended family (but no doubt a requirement for the television ratings), can stop reading now.

All others, take note for our first tutorial, of the references to the outdated (even then) but shortly to be amended laws on intestacy (Matthew failed to make a will) resulting in Lady Mary’s diminished share in the estate and looming spectre of heavy death duties.

While death at an early age is always tragic and as was observed of Matthew, he anticipated being around for many years thence, what happens on intestacy generally seems to come as something of a shock.

The rules, which determine the distribution on a person’s death of any of his or her property not governed by a valid will, are largely contained in the Administration of Estates Act 1925 (spookily coinciding roughly with the current Downton period - will Lord Grantham vote on it in the House of Lords?) and the Intestates’ Estates Act 1952.

By and large these have not kept pace with the requirements or expectations of modern family life. Back in 2009 the Law Commission published a consultation paper on various aspects of the rules, some of which have been included in the Inheritance and Trustees’ Powers Bill 2013 which is working its way through the House of Lords as I write.

Under the current provisions, however, in the absence of a valid will by Matthew, because his estate is likely to have been valued at more than £250,000 and he was survived by a wife and child, Lady Mary's entitlement today would still be limited. She could claim for herself a statutory legacy of £250,000 and all of Matthew's personal chattels.

The balance of Matthew's estate would then be divided in two with Lady Mary receiving a life interest (ie income only) in one half of the estate. The gorgeous George would be entitled to the other half of the estate on statutory trusts and the half of the estate in which his mother has a life interest, on her death.

This was probably not the result she and Matthew (or indeed Lord Grantham) were hoping to achieve by virtue of their collective and cumulative efforts in the previous three series. Do note, however, that in certain circumstances, the provisions of intestacy can be varied in the same way as one can vary a will.

However, in my experience what is sometimes more surprising for clients is not necessarily the effects of intestacy but the fact that despite having gone to the trouble of officially anticipating one’s demise and providing for it (as far as one's property is concerned) in a considered manner, one can find oneself inadvertently rendered intestate.

For example, if a testator divorces (or ends a civil partnership) his will takes effect as if his former spouse or civil partner had died before him, subject to express contrary intention. Similarly, marriage revokes a will unless it was drafted expressly in contemplation of the said nuptials. Of course, as a solicitor, Matthew should have known this, but perhaps he took too great a heed of the adage 'A solicitor who acts for himself has a fool for a client.'

Other topics for discussion in future tutorials might be the content of Nanny West’s employment contract (did she breach a condition that both charges should be treated equally?), the grounds for divorce in other jurisdictions or the extent to which the estate could qualify for agricultural, business or even heritage property for inheritance taxes. Who ever thought Downton was an education?

Sophie Mazzier is counsel at City private wealth law firm Maurice Turnor Gardner LLP

This piece first appeared on Spear's Magazine

Photograph: Getty Images

This is a story from the team at Spears magazine.

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The end of loyalty: why are we still surprised when politicians betray each other?

There was Labour’s attempted coup, now the cabinet is in civil war. Have British politicians always been so openly disloyal?

Politicians have always had a reputation for backstabbing, but recently Westminster has been a battleground of back, front and side-stabbing in all parties. The shadow cabinet trying to oust Jeremy Corbyn after the EU referendum; Michael Gove abandoning Boris Johnson to make his own Tory leadership bid; and now Johnson himself derailing Theresa May’s set-piece Brexit speech with his Telegraph essay on the subject – and rumours of a resignation threat.

On the surface, it seems Brexit has given politicians licence to flout cabinet collective responsibility – the convention that binds our ministers to showing a united front on government policy.

The doctrine of cabinet collective responsibility was outlined in the Ministerial Code in the early Nineties, but it became a convention in the late 19th century “the way in which we talk about it still today, in terms of people failing to adhere to it”, says the Institute for Government’s Dr Cath Haddon, an expert in the constitutional issues of Whitehall.

It even goes back earlier than that, when the cabinet would have to bond in the face of a more powerful monarch.

But are we witnessing the end of this convention? It looks like we could be living in a new age of disloyalty. After all, the shadow cabinet was allowed to say what it liked about its leader over nearly two years, and Johnson is still in a job.

An unfaithful history

“I think it’s nothing new,” says Michael Cockerell, who has been making political documentaries and profiles for the BBC since the Seventies. “If you think back in time to Julius Caesar and all the rest of it, this loyalty to the leader is not something that automatically happens or has been normal both in history and modern democracies – there have always been rebels, always been ambitious figures who all work out exactly how far they can go.”

He says the situation with Johnson reminds him of Tony Benn, who was an outspoken cabinet secretary under Harold Wilson and Jim Callaghan in 1974-79. “He knew exactly how far he could push it without being sacked, because of the old thing about having him inside the tent pissing out, rather than outside the tent, pissing in.”

Cockerell believes that Johnson, like past cabinet rebels, knows “how far” he can go in defying May because she’s in a precarious position.

“Often if a prime minister is weak, that’s when the ambitious members of the cabinet can parade their disloyalty while still claiming they’re still being loyal,” he says. “Most people who are disloyal always profess their loyalty.”

The peer and former Lib Dem leader Ming Campbell, who has been in politics since the early Seventies, also believes “it’s always been like this” in terms of disloyalty in British politics.

He gives Wilson’s governments as a past example. “There was a fair amount of disloyalty within the cabinet,” he says. “I remember it being suggested by someone that the cabinet meetings were often very, very quiet because people were so busy writing down things that they could put into print sometime later.”

“Fast-forward to John Major and the ‘bastards’,” he says, recalling the former Conservative prime minister’s battle with trouble-making Eurosceptic cabinet members in 1993.

Dr Haddon adds the examples of Margaret Thatcher being brought down by her cabinet (and tackling the “wets and dries” in her early years as PM), and Tony Blair and Gordon Brown’s teams briefing against each other.

She believes “nothing changes” regarding disloyalty because of the way British government works. “The UK system really provokes this sort of situation,” she says of Johnson. “Because we have empowered secretaries of state, we have a sort of federalist structure, and then we have the prime minister in the position of primus inter pares [first among equals].”

The idea of the prime minister being a fully empowered leader in control of a team is a “modern concept”, according to Dr Haddon. “If you go back into the nineteenth century, ministers were very much heads of their own little fiefdoms. We’ve always had this system that has enabled ministers to effectively have their own take, their own position in their particular roles, and able to speak publicly on their perspective.”

She says the same happens in the shadow cabinet because of the nature of opposition in the UK. Shadow ministers don’t receive tailored funding for their work, and are therefore “often very much reliant upon their own team” to develop policy proposals, “so they become quite autonomous”.

How disloyalty has changed

However, disloyalty plays out differently in modern politics. Campbell points out that with politics developing in real time online and through 24-hour news, there is a far greater journalistic focus on disloyalty. “Previously it would’ve been in the Sunday papers, now you get it 24 hours a day, seven days a week,” he says.

Dr Haddon believes pronouncements of disloyalty are more “overt” than they were because of the way we communicate on social media. Platforms like Twitter discourage the “coded messages” of past disloyal cabinet secretaries, and show infighting more starkly.

“There is this immediacy of reaction,” she says. “And that it’s constrained to 140 characters leads people to ever more brief, succinct declarations of their position. We are also living through a period in which, dare I say, hyperbole and strength of position are only exaggerated by that medium. There’s something in that which is very different.”

And even though British political history is littered with attempted coups, betrayals and outspoken ministers – particularly over Europe – there is a sense that the rulebook has been thrown out recently, perhaps as Brexit has defied the status quo.

Collective responsibility and the idea of the prime minister as primus inter pares are conventions, and conventions can be moulded or dropped completely.

“The constitution is open for discussion now to an extent that I can’t remember,” says Campbell. “You’ve got arguments about independence, constitutional arguments which arise out of Brexit, if we leave. In those circumstances, it’s perhaps not surprising that the constitutional convention about cabinet responsibility comes under strain as well.

“If you’ve got a constitution that depends upon the observance of convention, then of course it’s much easier to depart from these if you choose,” he adds. “And in the present, febrile atmosphere of constitutional change, maybe it’s hardly surprising that what is thought to be a centrepiece is simply being disregarded.”

Anoosh Chakelian is senior writer at the New Statesman.