Wills and Complex Families – Some simple precautions
Wills and complex families very often do not make happy bedfellows. We have previously mentioned the increasing number of cases where Wills are being challenged before the Courts and have suggested some ways in which the risk of such a challenge might be reduced. It would seem that barely a month goes by however without such a case needing the intervention of a Judge.
One of the first and crucial points to remember is that if you marry any Will that you may have made prior to the marriage is automatically revoked by the law, unless that Will is expressly stated to have been made in contemplation of the marriage. This is so even if, for example, you were living with a new spouse at the time that you made the Will, but were then unmarried. For example, you could have made a Will while living with a partner in which you made some provision for that partner and some for other family members e.g. children. You then decide to marry your partner. Regardless of the provisions of your Will it will be automatically revoked by the marriage. If you do not make a new Will the devolution of your estate will be governed by the intestacy rules. Depending upon the size of your estate and the structure of your family your new spouse may then inherit all of your estate. This may not be as you intended and is likely to leave those who would have inherited some of your property under the Will made searching for a way of challenging the position. The solution to this potential problem is quite clear – if you remarry make a new Will.
Your choice of Executors may also be important in avoiding any possible disputes. If you are aware of any prospective difficulties, or your beneficiaries simply do not get on then it is sensible to consider appointing at least one independent Executor who may be able to head off any problems before they become irreconcilable. In reality it is often the case that where spouses each have children by a previous marriage those children may have very different ideas about the source of any family assets and their entitlement to share in those assets on their parents passing. Step siblings may give the impression of getting on perfectly well, but when a parent has died and that money is at stake the atmosphere can change rapidly. Having an Executor who is neither “side” and has experience of dealing with such matters can be invaluable.
You should also be careful to keep your Will under review. If you have supposed that particular property to a beneficiary, but subsequently parted with that property for any reason the gift that you have made in your Will will fail. Quite simply you cannot give away something in your Will that you do not own the date of your death. The beneficiaries not automatically entitled to receive anything else that you may have acquired in the place of the property in question, nor to any other property as some form of “compensation”. Again, this is likely to leave the beneficiary feeling aggrieved, with the thought that they have not received what you intended. Such feelings so the seeds of potential litigation.
The other side of the same coin, perhaps is if you divorce. When you receive your Decree Absolute it will warn you that the granting the Decree has important consequences for any Will that you have made. In particular your former spouse will be deemed to have died on the date of the Decree and your Will will be interpreted accordingly. You should check the terms of your Will to see exactly what the consequences of this might have.
Where you have been divorced you should also take advice as to whether your former spouse might have any potential claim against your Estate. This will depend upon the way in which your finances have been dealt with within the divorce proceedings.
Of course, if you are separated, not but not divorced your spouse remains exactly that. You may not have lived together for very many years, but that will not affect their entitlement. If you are in this situation you, most certainly, should seek expert advice as soon as possible.
It is true that none of us like to think of our families squabbling over our assets once we have gone. Along with all the emotional toll that such disputes take the truth is there is rarely a winner. By the time the Courts have become involved any estate is likely to be very much reduced. Regrettably it is not unusual for the whole of a deceased’s estate to be swallowed up in legal costs as families become more and more entrenched in irreconcilable positions.
Of course Wills and complex families can work. Making sure that you have a Will at all and then taking steps to make sure that it is regularly reviewed continues to meet your requirements are the best steps that you can take to ensure that your assets go where you would wish.