The amount of money a spouse receives if their partner dies without making a will could increase, the government announced in 2005.

If a person with children dies without leaving a will, their surviving spouse will receive only the first £125,000 of their estate. If there are no children but there are surviving parents or siblings the spouse will receive £200,000.

The Department for Constitutional Affairs (DCA) estimates that under the intestacy rules, in up to 9,000 cases each year a surviving spouse will not receive all of their partner's estate.

In 4,000 of these cases, the family home may have to be sold, so that money from the estate can be paid to the children or other relatives.

A consultation paper published in 2005 by the DCA proposed that the limits be increased so that, where children are involved, a spouse can receive £350,000 of an estate and where there are no surviving children they can receive £650,000.

"The death of a spouse is always a traumatic event, but can be particularly so where they die without leaving a will," said the minister for civil justice, Baroness Ashton in 2005. "In these cases, the financial future of the widow or widower and any children will depend on how much money they can inherit under the intestacy rules."

The consultation paper suggests that the payment levels in 2005, which were set in 1993, may now be out of date, primarily due to the increase in house prices. According to 2005 figures the average house price now stands at £162,411 - some way above the £125,000 limit.

However, the DCA is concerned about cases where the legacy paid to the surviving spouse could mean that there are no funds left to distribute to any children. This can be particularly contentious when the deceased has children from an earlier relationship.

In 1993, more than 90% of estates were worth less than £125,000 and 98% of estates were valued at under £200,000. In 2005 these figures are 59% and 79% respectively.

Research carried out in March 2005 by insurer Standard Life suggested that 57% of adults in the UK had not drawn up a will, including 40% of people with homes worth more than £150,000.

So what has happened since this was proposed in 2005. Alan Porter, of The Will Centre, says “Nothing at all has changed! The levels set in 1993 and that were being reviewed in 2005 still apply! If you consider it is almost impossible to buy a house for under £125,000 you can see that there is a real problem. The best way to avoid any problems is to make a Will.”

Appointing Guardians

The provision for a guardian in a Will is something which should be considered by all parents with children under the age of 18. The law relating to Guardianship, contained in the Children Act 1989, is concerned with the welfare of a child whose parents have died. The law allows a parent with parental responsibility, or anyone who is a guardian of a child already, to appoint a guardian in the event of their death.

This means that a father without parental responsibility (PR) cannot appoint a guardian, neither can a person with PR who is not a parent.

The appointment must be made in writing, dated and signed and is most commonly done under a Will.

When the guardianship comes into effect depends upon whether or not a residence order is in place when one of the parents dies. Where an order has been made in favour of the parent who has died the guardianship will come into effect on their death, even if they predecease the other parent who has PR. Where there is no residence order in place the guardianship will only come into effect when the last remaining parent with PR dies. Any appointment by the first parent to die will not come into effect until the second parent has died.

The distinction between the above is based on the fact that a court, when making a residence order, may have decided that the other parent is unsuitable and enabling the parent with the order to appoint a guardian may in effect protect the child.

Where more than one guardian is appointed, and any decisions relating to the child cannot be resolved between the parties, they can apply to the court for a residence order.

The person appointed as a guardian is not subject to approval by the court or a local authority, in fact, there is very little control over the appointment. A marked contrast with the rigorous checks carried out for fostering or adoption. The court does have the power to revoke a guardianship and this power can be used where the guardian is unsuitable. It is still debateable whether this power to revoke offers enough protection and whether a more effective measure would be for potential guardians to undergo some kind of vetting process.

Where both parents die without appointing a guardian (i.e. intestate or without provision in their Wills or other documents) the court can appoint a guardian for the child. The court will also appoint a guardian where the one appointed by the parents is unable or unwilling to act. This will usually follow an application to the court by the proposed guardian although the court may act of its own motion as well. In deciding who to appoint the child’s welfare is the paramount consideration.

The appointment can be revoked by a subsequent appointment (unless it is clear that the second appointment is in addition to the first), revocation by a signed and dated document, revocation of the Will in which the appointment is made or, where a spouse is appointed, by divorce. The appointment may also be revoked by the court on application by anyone with PR or the child themselves.

A guardian may disclaim the appointment within a ‘reasonable time’ which must be in writing.

Although a guardian can be appointed in any written document there are certain advantages in appointing in a testamentary document as these documents are more likely to be preserved, easily identifiable and will be under consideration by those dealing with the estate on the death of the parent.

Negus v Bahouse

The lover of a wealthy business man who committed suicide before fulfilling a promise to marry her on the QM2 has won a High Court battle with his family over his £3 million estate.

Multimillionaire Henry Bahouse and former dental nurse Cyd Negus had a ‘flamboyant lifestyle’ before his death in 2005. His Will didn’t provide for 50-year-old Ms Negus, who therefore claimed for financial provision to be made for the rest of her life from his estate.

Mr Bahouse’s family contested the claim, arguing that Ms Negus had already received the proceeds of a life assurance policy, taken out by Mr Bahouse for her benefit, and a half share in a Spanish property. Together, these were worth in excess of £600,000. According to Ms Negus, she and Mr Bahouse were intending to get married and even hoped to start a family.

According to Mr Bahouse’s family, the couple were on the verge of breaking up and Mr Bahouse had no intention of marrying Ms Negus.

In the view of Deputy High Court Judge Roger Kaye QC, they had lived together as husband and wife and she and had a reasonable basis for believing that her future financial needs would be met by Mr Bahouse. He awarded Ms Negus the ownership of the flat she had shared with Mr Bahouse (valued at approximately £400,000) and a lump sum of £240,000. The balance of the estate, worth about £2m, went to Mr Bahouse’s family – mainly to his son Gordon.

Alan Porter of The Will Centre said, “The case raises some interesting points. The first and most obvious is that this kind of stress and heartache could be avoided if people make a Will and keep it up to date. That way they can ensure their estate is divided according to their wishes. The other point is that it is possible in certain circumstances to successfully challenge a Will if a person feels their reasonable expectations to inherit have not been met, using the Inheritance (Provision for Family and Dependants) Act 1975 as amended.”