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My kingdom for a horse

You probably heard about the rediscovery last year of the mortal remains of King Richard III in the somewhat unregal location of a municipal car park in Leicester. The news was all over the media when the bones were confirmed as belonging to the king. Poor old Richard went from being demonised as the hunchbacked murderer of the princes in the tower, to being popularly known as the “king in the car park”.

King Richard has been back in the news recently following the resolution of a court case in which the issue of where he should be reburied was thrashed out before the High Court. Although not entirely on the topic of family law, we have been following the legal wrangling over his last resting place with some interest. In summary a case was brought by an organisation called the Plantagenet Alliance who argued that the king’s descendants should have been consulted about plans to rebury the monarch in Leicester Cathedral, and that the skeleton should instead be buried in York (Richard being the last Yorkist king). They lost their case, and we understand plans to reinter the king’s bones in a tomb in Leicester Cathedral will now proceed.

Although challenging decisions about where best to rebury rediscovered Medieval monarchs is not our day to day work, it did get us thinking about how we respect the wishes of the deceased and what happens when there is disagreement between the surviving relatives, and the changing position of relatives over the years.

The starting point, of course, is the will of the deceased, which should be determinative of how the estate is to be distributed, and deal with specific requests of the deceased such as funeral arrangements. Had Richard III left a will stating where and how he wished to be buried, the recent court case, with its cost to the public purse could have been avoided. Hindsight is a wonderful thing!

In certain circumstances it is possible to challenge a will. Claims can be brought on the basis that a will has been forged or fraudulently obtained, if the deceased was subjected to undue influence from a third party, if they did not have mental capacity to make the will, or did not understand the implications of the will as drafted. A will must also be properly executed and witnessed to be valid.

In addition to challenging the validity of a will, then in some cases it is possible to challenge its contents. The law is contained in the Inheritance (Provision for Family and Dependants) Act 1975. We wrote about potential challenges to wills under this legislation here.  In essence, certain categories of people can apply for an order that the will or the intestacy rules do not make reasonable financial provision for them, and thus to provide them with such provision. Those people are deceased’s spouse or civil partner, former spouse or partner provided they have not remarried, a cohabitant , a child of the deceased or someone treated as their child, or someone who was financially maintained by the deceased.

Courts can make a range of orders which largely mirror those available on divorce – maintenance orders, cash lump sums, or orders for property to be transferred out of the estate to the claimant. They can also vary pre-nuptial or post-nuptial agreements.

Returning to Richard III, he usurped the throne from his nephew (Edward V – one of the princes in the tower) by declaring him to be illegitimate and therefore unable to rule the country. The throne passed then, as now, according to “primogeniture” – i.e. to the first born legitimate (at that time, male) heir. It is worth noting that despite the notion continuing in some religious and secular thinking (and with regards to the succession to the English throne); in modern family law the concept of legitimacy/illegitimacy does not exist anymore. Children born within and without marriage can both inherit under wills and intestacy, can challenge the provisions of a will, and of course have equal standing before the family courts. This was not always the case, and until the early 20th century the position of children born out of wedlock was often dire, with no rights to inherit. Law reforms have broadly equalised the position for all children, although hereditary aristocratic titles are still, generally, limited to the children of married parents.

If there is anything we can do to assist you about a family matter, do please get in touch with us on 01223 443333 to make an appointment.

*This blog is written as a free public resource for informational purposes only, and does not constitute legal advice.  Whilst we appreciate your comments under this blog, we regret we are unable to give legal advice in response to them.

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