Legal Corner: September 2023

Once a month the Technical Team publish a selection of interesting recent queries received from our Members. All queries and responses are anonymised so some details may be slightly changed to protect the identity of Members and their clients. Below is a selection from September 2023.

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Q: Lady has sadly had to go into Care. Her partner who she is not married to has moved out of the house for some reason so the Local Authority have said the house is to be sold to pay the costs of her care.

My main question is although they are not married, if he was living in the property, could the property be still disregarded for means-tested purposes? Does she qualify as a dependant relative even if they are not married?

If he decided to move back in, could we stop the process and have the house ignored or is that far too transparent?

A: If the home is being occupied by an unmarried partner as their sole or main residence then the property is disregarded from the means test. Unfortunately, we believe it is too late for him to move back in now to stop the process as they need to have been living in the property before the process of moving into care has started.

In circumstances where a relative moves into the property after the person has moved into care the local authority do have discretion to still disregard the property, but as a discretionary power it is of course up to them if they exercise it. Statutory guidance tells them they need to consider “all relevant factors” about why they have moved back in, and if it is solely to preserve a family inheritance or avoid sale then they won’t opt to disregard.

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Q: Is it possible to make a beneficiary’s inheritance conditional upon them still being married to a particular person at the time the testator dies?

A: A testator is free to make a gift in a will that is conditional on the intended beneficiary doing something or meeting a certain prerequisite, with the most common example being an age condition. However, care needs to be taken with drafting conditions as conditions may be void if they are too uncertain, against public policy, or “in terrorem” of the beneficiary.

Conditions in restraint of marriage are void. Conditions requiring the separation of spouses are also invalid. So it’s generally against public policy to impose a condition that prevents somebody from marrying or requires their separation but not, as far as I am aware, to require that a beneficiary is still married to a particular person at the time the testator dies for the gift to take effect.

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Q: I have a client who wants to make sure that should any of his beneficiaries die before him (they are either children or step-children) their share of his estate passes to their own estate to be distributed in accordance with their own Wills or intestacy. I could simply remove the Survivorship Clause that I usually include but want a more ‘belt and braces’ approach to avoid any confusion over his intentions.

Do you have any wording that I can include that makes it crystal clear that he intends a deceased beneficiaries share to pass into their own estate rather than falling back into my client’s estate?

A: I do have a clause for this:


I DECLARE that if [name] shall die during my lifetime or if this gift shall fail for any other reason the share of residue [legacy of …] hereby given to [him] [her] shall not lapse but shall in that event pass to [his] [her] personal representatives as part of his estate.

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Technical advice is an exclusive benefit of Full Membership to The Society of Will Writers (Member grade MSWW^) and is provided by email only. For more information about accessing our technical advice service, please see here.

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