Why your Will should plan for the worst-case scenario

Last New Year’s Eve, British businessman Richard Cousins, his two sons, fiancée and her daughter climbed into a De Havilland Beaver light aircraft to take a short pleasure flight over the Ku-ring-gai Chase National Park in New South Wales.

The family were in Australia on holiday, with tickets to see the 5th Ashes Test in Sydney in the first week of January.

They never made it. Twelve kilometres and less than ten minutes into the flight, the plane crashed into Cowan Creek, a tributary of the Hawkesbury River, killing all on board.

On the surface of it, the events are a story of family tragedy that is thankfully extremely rare. But it’s the millions-to-one odds against it happening that has made Richard Cousins’ death such a cautionary tale when it comes to preparing a Will.

Mr Cousins was the CEO of Compass Group, the world’s largest food service company, and recognised by the Harvard Business Review as one of the 20 top-performing chief executive officers in the world. He was, as you might expect, remunerated accordingly, allowing him to amass a personal net worth that, at the time of his death, amounted to more than £40 million.

Mr Cousins had no spouse – his wife Caroline had died from cancer in 2015 – and his only immediate family were the two sons, aged 23 and 25, who perished with him that day. Had she survived, his fiancée, Emma Bowden, the daughter of former Conservative MP Gerald Bowden, would likely have had little if any claim to his estate.

Had he taken a typical view of estate planning when he wrote the final version of his Will in 2016, following his wife’s death, the probability is that Richard Cousins’ estate would have been subject to laws around intestacy, since in the first instance his sons were named as his sole beneficiaries.

But instead, the astute businessman had considered what might happen in the highly unlikely event that his sons died with him.

That’s somewhat atypical because Mr Cousins’ sons were themselves adults and the occasions on which the three might travel together, or be together in a situation that may pose a threat to life, could legitimately be expected to be much less frequent than, say, those affecting parents of younger children living at home.

Nevertheless, Richard Cousins wrote a ‘common tragedy’ clause into his new Will, which recognised that such an event, whilst not likely, was still possible, and named a second beneficiary in the event the three men died together.

Which is why, this month, it was revealed that the charity Oxfam would receive £41m of the estate left by Mr Cousins. Exactly as he wished, should the worst happen.

The simple fact is that no one really wants to think about dying. Part of the human condition is that we’d prefer to live for today and worry about tomorrow when it comes. And we all know that tomorrow never comes … until it turns up unannounced. And if we’re not prepared to think about our own death, we certainly don’t want to think about the deaths of those whom we love and who, in the natural order of things, should outlive us by a good couple of decades at least.

But what the Cousins story proves is that sometimes the worst can and does happen and that much as Richard Cousins might have expected his sons to inherit as he had planned, he also understood there was a remote chance that fate had an altogether different plan.

So, what might have happened had he simply done what most people do and assumed his sons would survive him?

The law on intestacy differs slightly depending on where in the UK you live. In England and Wales, with no living beneficiary, Mr Cousins would have been deemed to have died intestate. In that case, in the simplest of terms, given there was no surviving spouse, grandchild or parent and assuming no other legitimate claim on the estate, his fortune would have been shared in its entirety by his two surviving brothers.

In fact, Mr Cousins bequeathed £1m to each of his brothers and so given they weren’t totally disinherited, it’s reasonable to assume he had good reasons for wanting to leave the bulk of his estate to charity.

What Richard Cousins achieved by writing a ‘common tragedy’ clause into his Will was assurance that his wishes would be observed in the event of a worst-case scenario. What he did, in effect, was have a back-up Will.

The point is, the value of your estate is irrelevant. Whether you have £43m or £1 doesn’t matter – but your wishes and the way in which you want to provide for others do. By not considering all eventualities what you risk is an intestacy process that is, to a greater or lesser extent, largely black and white. It may not include the people you want to benefit or, perhaps worse, it may reward those you specifically want to exclude.

By ensuring you have a contingency included for every beneficiary you name in your Will, you can be sure that your estate will go to the people and/or organisations of your choice.

If you have a Will, it’s a good idea to review it and ask whether it adequately reflects your wishes in a worst-case scenario. If, like more than half of UK adults, you have yet to make a Will, you should make one now – and take the opportunity to plan for every eventuality.