The legal position – and how to avoid similar problems

Where parents remarry and enter into property transactions with their new spouse, wills bequeathing assets to children of former relationships need to be checked.

Sonita Hayward of solicitors Bolt Burdon Kemp warned of "a real lacuna in the law due to the fact that will-writing companies are not currently regulated". She said this is "particularly concerning when well known institutions such as Barclays offer such a service".

She explained that companies could afford to offer cut-price fees, such as the £90 charged by Barclays in this case, "because these organisations aim to profit from the fees generated by administering the estate as executor, after the testator’s death."

 

Rip-Off Executor Services Have Been Highlighted In The Press

 

In 2011 the Office of Fair Trading said: "'The wrong decision when appointing executors could mean a potentially expensive professional service is chosen, when a family member or friend may be quite capable of handling the task either alone or with professional support."

At that point banks including Barclays undertook to review their will-writing services.

Clearly, problems with existing wills remain.

Ms Hayward has experience of joint tenancy problems such as that raised in the Aregbesola case.

"I see cases all too frequently where the problems with the terms of a will and failure to sever a joint tenancy only come to light after the death of the testator, at which point it is too late. Parties are then reliant on the good will of a third party, often a parent’s second spouse, to resolve the issues that they face.

"The difficulty with this is that a joint tenant is under no legal obligation to comply with a deceased joint tenant’s wishes where the joint tenancy has not been severed. The only redress open to the disappointed beneficiary is for them to sue the party that prepared the will."

"I have previously acted for siblings where one of their parents left them their half of a jointly owned house. The parent in question had remarried and owned the property jointly with their new spouse.

"The solicitors who prepared the will in that case did not take any steps to sever the joint tenancy which existed between the owners. As a result, following the death of my clients’ parent, the gift of the interest in the property failed and the spouse inherited the remaining share of the property.

"My clients had to bring a claim against the solicitors who prepared the will as they had no remedy against the new spouse. We were successful in recovering damages for them. Awareness of these types of claim arise at what is already a very distressing time and cause great additional emotional strain to families."

Daniel Winter of law firm Nockolds said: "The growing complexity of family structures, coupled with the rising value of estates, means that the administration of estates often calls for greater judgement than in the past."

“Cases where an individual or organisation has simply been negligent, and failed to grasp the legal responsibilities of administering an estate are becoming more frequent. We have also seen cases where a family member acting as fiduciary is motivated by greed and takes assets which should go to other beneficiaries, or seeks to ‘correct’ a perceived wrong that happened in the past."