At Else Solicitors we work closely with clients and customers to ensure that all scenarios and eventualities are covered when they are preparing or amending a Will. One topic that we always include on our checklist is the option of including a disaster clause.
A disaster clause outlines what is to happen if all your primary beneficiaries die before you or at the same time. You might think this extremely unlikely, and in truth it is a rare event, but all the same it is worth including a disaster clause. This is especially true for families who have children who are still under 18 or living at home, or where they are likely to travel together as a group. Or for people who have only one beneficiary they wish to include.
Couples with children generally want each other to benefit first, and then if they both die at the same time the estate should pass down to the children. A disaster clause looks at what happens to the estate in a scenario where there is an accident in which the whole family are taken together. It is an awful thing to contemplate, but not out of the realms of possibility, for example if they are all travelling together.
If the Will makes no provision for this, then the Intestacy Rules will apply to any part of the residue of the estate where there are no surviving beneficiaries. These are statutory Rules which govern what happens to an estate where there is no Will, or where there is a Will but there are no beneficiaries. Given that in the scenario we are talking about there will be no spouse or children surviving, the first set of relatives who would benefit under the Intestacy Rules would be the parents (of the parents – whom I will call the grandparents). If there are no surviving grandparents, then we look at whether there are any siblings, and beyond that other blood relatives, who may be quite distant.
In the case of the estate passing back up to 2 sets of grandparents, then this can be complicated given the way joint ownership of assets works. For example – a couple own a property as joint tenants, on the death of one of them, the property automatically and immediately passes to the survivor in full. This is regardless of how long there was between the deaths and regardless of the terms of the Will. In this scenario then, without a disaster clause, only one set of grandparents will benefit from the entire value of the property, which may well be the major asset.
A disaster clause can help in this scenario by ensuring that both Wills split the estate equally between grandparents and so regardless of which estate the property ends up in, both families are able to inherit.
Another complication can arise if there is a child from a previous marriage who is not included in the Wills. If there is no disaster clause, and the Intestacy Rules apply, that child will inherit at least something from the estate, which may be against the wishes of the testator (person making the Will).
Other scenarios that need to be considered include divorced parents, family feuds, and individuals who have distanced themselves completely from their parents or siblings and would not wish them to be beneficiaries. If there is no disaster clause then these relatives might end up with everything through the Intestacy Rules. By having a disaster clause in your Will in this case, you can make sure that the estate passes to other individuals or even to charity rather than to estranged family members.
The examples highlight above are just a few of the considerations that need to be addressed by anybody who is making or amending a Will. They also show the importance of getting the right legal expertise and advice. Else Solicitors have a dedicated team of professional specialists in this area. For an informal chat then please contact Kathryn Caple, Head of Wills and Probate at Else Solicitors, on 01283 526230 or kathryn.caple@elselaw.co.uk.
