Faith alone is not enough: The dangers of not writing a will

A fierce disagreement over the sale of a guitar that had been used by George Michael provides a useful reminder of how important it is to write a will. The dispute illustrates what can happen when someone dies without a valid will, particularly while separated from a spouse but not yet divorced.

When Siobhan Bailey died unexpectedly in 2014, aged just 56, she had amassed a large collection of Wham! and George Michael memorabilia, including photographs, hand-written notes and gold discs. She is also thought to have been in the middle of two significant legal processes – divorcing her estranged husband, Ian Belcher, and drawing up a will. With neither process concluded at the time of her death, she died intestate and her entire estate went to her husband.

Acting as George Michael’s PA for 20 years (including the most successful of the Wham! years), Siobhan built a close relationship with the pop legend. As a result, he gifted her the Gretsch Synchromatic guitar famous for having featured in the classic video for the song ‘Faith’ in 1987, which she kept for the rest of her life.

Passed over to Mr Belcher and stored in a garage for the 12 years subsequent to Ms Bailey’s death, the memorabilia made national news recently when Mr Belcher auctioned many items in the collection. The guitar alone fetched £180,000.

Ms Bailey’s surviving brother, Gerard Bailey, objected to the sale, and claimed that his sister would never have considered selling these items had she still been alive. It was also his contention that, had she died with a valid will, she would have passed the collection to her nieces and nephews. However, under the circumstances, Mr Bailey had no legal basis on which to stop the auction or alter its terms.

For those of us in Shepherd and Wedderburn’s Private Wealth and Tax team, these extraordinary facts give rise to an all too familiar scenario. While few estates contain a genuine slice of musical history, the dispute illustrates what can happen when someone dies without a will, particularly while separated from a spouse but not yet divorced.

What happens if you die without a will while separated or divorcing?

Where a person dies without a will, there are laws which set out how an estate is to be distributed. These are known as the ‘intestacy rules’. They are different in England & Wales from in Scotland, but both jurisdictions heavily favour a surviving spouse or civil partner, even where that person is estranged. Ms Bailey could have over-ridden this by making different arrangements in a valid will (as her brother claimed that she intended to do).

Even if Ms Bailey had concluded her divorce before she died, but was still without a will, the story would have been different. In both England & Wales and in Scotland, the automatic right to inherit from a spouse’s estate on intestacy falls away upon divorce. In England & Wales, a limited right to make a claim on the estate for ‘reasonable financial provision’ persists for a former spouse (which may be relevant where, for example, maintenance payments were being made between spouses). There is no equivalent provision in Scotland.

So, had Ms Bailey been divorced when she died, other members of her family may instead have inherited her estate under the intestacy rules, and they may therefore have been able to control what happened to her personal possessions.

Can you use a will to decide who inherits personal possessions?

For many people, one of the main benefits of writing a will is being able to specify who will receive important personal possessions. Even if these do not include an iconic piece of 1980s popular culture, they can have huge sentimental value and be an important part of a family’s history. Writing a will reduces the risk of them ending up in the wrong hands or becoming the subject of a family argument. Wills therefore often contain detailed instructions about who should receive particular items. They can also set out a process for family members or other beneficiaries to agree how personal possessions should be divided between them.

Can you exclude a spouse from your will?

It is important to note, however, that in both England & Wales and in Scotland, there are limits on an individual’s ability to entirely exclude their spouse from benefiting from their estate. In England & Wales, surviving spouses or civil partners are entitled to apply to the courts for financial provision. In Scotland, a surviving spouse or civil partner has ‘legal rights’ to a share of the deceased’s net moveable estate (which is, put simply, everything except land and property). This can apply even where the deceased left a will.

It is understandable that many people put off writing a will or dealing with other aspects of succession planning – especially when they are going through significant life events such as divorce. But this might actually be the most important time to seek advice, because failing to do so creates a real risk of unwanted outcomes. We will never know what Ms Bailey’s thoughts, feelings and wishes truly were – they were never formally expressed – but it is unlikely that she would have wanted to see arguments about her private and cherished possessions being discussed in the national media.

If you would like to have a specific discussion about your own arrangements, please contact a member of our Private Wealth and Tax team.

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