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All others, take note for our first tutorial, of the references to the outdated (even then) but shortly to be amended laws on intestacy (Matthew failed to make a will) resulting in Lady Mary’s diminished share in the estate and looming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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Richmond is a wake-up call for Labour's Brexit strategy

No one made Labour stand in Richmond Park. 

Oh, Labour Party. There was a way through.

No one made you stand in Richmond Park. You could have "struck a blow against the government", you could have shared the Lib Dem success. Instead, you lost both your dignity and your deposit. And to cap it all (Christian Wolmar, take a bow) you self-nominated for a Nobel Prize for Mansplaining.

It’s like the party strategist is locked in the bowels of HQ, endlessly looping in reverse Olivia Newton John’s "Making a Good Thing Better".

And no one can think that today marks the end of the party’s problems on Brexit.

But the thing is: there’s no need to Labour on. You can fix it.

Set the government some tests. Table some amendments: “The government shall negotiate having regard to…”

  • What would be good for our economy (boost investment, trade and jobs).
  • What would enhance fairness (help individuals and communities who have missed out over the last decades).
  • What would deliver sovereignty (magnify our democratic control over our destiny).
  • What would improve finances (what Brexit makes us better off, individually and collectively). 

And say that, if the government does not meet those tests, the Labour party will not support the Article 50 deal. You’ll take some pain today – but no matter, the general election is not for years. And if the tests are well crafted they will be easy to defend.

Then wait for the negotiations to conclude. If in 2019, Boris Johnson returns bearing cake for all, if the tests are achieved, Labour will, and rightly, support the government’s Brexit deal. There will be no second referendum. And MPs in Leave voting constituencies will bear no Brexit penalty at the polls.

But if he returns with thin gruel? If the economy has tanked, if inflation is rising and living standards have slumped, and the deficit has ballooned – what then? The only winners will be door manufacturers. Across the country they will be hard at work replacing those kicked down at constituency offices by voters demanding a fix. Labour will be joined in rejecting the deal from all across the floor: Labour will have shown the way.

Because the party reads the electorate today as wanting Brexit, it concludes it must deliver it. But, even for those who think a politician’s job is to channel the electorate, this thinking discloses an error in logic. The task is not to read the political dynamic of today. It is to position itself for the dynamic when it matters - at the next general election

And by setting some economic tests for a good Brexit, Labour can buy an option on that for free.

An earlier version of this argument appeared on Jolyon Maugham's blog Waiting For Tax.

Jolyon Maugham is a barrister who advised Ed Miliband on tax policy. He blogs at Waiting for Tax, and writes for the NS on tax and legal issues.