Mon 23 Dec 2019

Second Families

The framework of society has changed substantially over the generations, and these days it is very common to encounter complex family situations where for, example, one or both partners have children from previous relationships, perhaps as well as children from the current one, or are separated but not divorced.

Such complications can lead to confusion when thinking about drafting a Will. For example a husband may feel torn between providing for his wife by his second marriage on the one hand and ensuring that children from his first marriage are catered for on the other. It is therefore very important that advice is sought at an early stage so that the implications of any proposed course of action can be explored and explained, and a suitable Will can be prepared.

Full details of former relationships and children from those relationships must be disclosed to the preparer of the Will as only then can appropriate advice be given. There are a variety of factors which should be taken into account in a complex family situation: -

  • Prior rights :- Where a person dies intestate, i.e. without a valid Will, their spouse or civil partner can claim a share of the estate within certain limits laid down by law.
  • Legal Rights :- Even where a Will has been prepared, no matter what it says, a spouse/civil partner and children are entitled to claim Legal Rights in the estate. This can be particularly relevant in complex family situations.

There are steps you can take which are designed to minimise your personal moveable estate so that any Legal Rights claim on your death is likewise minimised. Care should however be taken as this may not be advisable depending on your circumstances. If this is of interest to you advice should be taken on the possibilities open to you.

Quite apart from situations where you may want to exclude certain individuals from benefit, care has to be taken in framing your will to cater for those whom you do want to benefit, and there can be pitfalls. For example:-

  • Children :- Any reference in a Will to “children” will include adopted and biological children but not stepchildren. If stepchildren are to benefit they must be specified.
  • Never assume :- If you leave your entire estate outright to your spouse by a second marriage you cannot assume that when they die they will ensure your children from an earlier relationship are catered for. Their own Will may be altered after your death to leave everything to their own family/friends/new partner, or they may die intestate and your children will get nothing. It often gives more peace of mind to frame your Will in such a way that you know exactly who will benefit, and when.

Setting up a Trust in your Will

Trusts can play a very important role in estate planning. They can allow for assets to be held for a spouse during his or her lifetime, passing to children on his or her death, or they can establish a “class” of potential beneficiaries, including for example one’s spouse and all children, leaving it to trustees to assess who should benefit from the funds placed into the Trust, and when. We can advise on the different types of Trust available and the most appropriate one for your circumstances.

Drawing up a Will to deal with a complex family situation can be fraught with difficulty, and we would strongly recommend that if your own family situation is not straightforward you contact us and arrange a face-to-face meeting so that the most appropriate Will for you and your family can be identified.

Examples of Legal Rights in Practice

  • Mr and Mrs Smith are married, separated, but have not yet had a formal separation agreement drawn up by their solicitors. There are no children. Mr Smith has a new partner, with whom he has bought a house, in his name. He has taken out a life policy for £100,000 designed to pay off the mortgage in the event of his death. He has drawn up a Will leaving his whole estate to his new partner. Nevertheless, on his death, the application of legal rights means that his spouse can claim 50% of the life policy, i.e. £50,000, leaving the new partner unable to repay the mortgage. Writing the life policy in trust, or having a carefully prepared separation agreement drawn up by Mr and Mrs Smith’s respective solicitors would have avoided either party being able to claim on the other’s estate.
  • Mr Jones is a widower with a wealthy adult son to whom he no longer speaks. Mr Jones meets a new partner and moves in with her but they do not marry. Mr Jones sells his own house for £250,000. This is all of the money he has. He bequeaths it all to his new partner in his Will. Despite this, on Mr Jones’ death, his son can claim £125,000 as his Legal Right from his father’s estate.

These are only two examples of the implications that the doctrine of Legal Rights has in second or subsequent relationships and are just an illustration of the traps which exist for the unwary. There are ways of avoiding or minimising such claims but specific advice must be taken in each case.

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