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It’s a common story, at least in our line of business.
A grieving widow, coming to terms with life alone, finds herself on the receiving end of demands by her late husband’s children from a previous relationship, for what they see as their rightful inheritance.
Nearly as often, a widow belatedly discovers that her husband has made a Will that favours his kids, which destines to leave her struggling to make ends meet.
Tensions in the step-parent / step-child relationship may have been there from the start, with suspicion or resentment on one or both sides. Other times, it’s only after the loved-one-in-common is no longer here that the problems begin.
For anyone with a second family, making a Will that strikes the right balance between a surviving spouse and expectant children is usually a tricky issue, even where there are the best of inter-family relationships. Attachments to the family home or personal belongings can be as much about sentiment as about money’s worth.
In the absence of a Will, the default Intestacy Rules give the surviving spouse all the personal belongings, the first £250,000 of value and 50% of everything over that. The children inherit the other 50%.
But depending on the size of the estate and how it is made up the Will or the Intestacy Rules may not leave enough for the surviving spouse going forward. For example, how much of the £250,000 is tied up in the matrimonial home? Did the deceased own shares in a business that provided an income for the couple? Does the surviving spouse have a disability or likely future care needs?
That is where the role of the Courts and the Inheritance (Provision for Family and Dependants) Act 1975 may come into play.
This may be a double-edged sword as far as a surviving spouse is concerned though; the Act gives either party the right to apply to Court to ask for “reasonable financial provision” from the deceased’s estate, where a Judge may override the Will or Intestacy Rules.
Claims by the step-children will only succeed if they can show a need for maintenance, and even then only if the estate is large enough to cater both for the child and to meet the needs of the surviving spouse, who will take precedence. For the surviving spouse, the key is to assess the risk.
Claims by surviving spouses are not limited to maintenance. Instead they will be awarded whatever a Judge decides would be reasonable in all the circumstances, taking into account a wide range of factors including the length of the marriage, the age of the spouse, their financial needs and resources and the competing needs of the beneficiaries under the Will or Intestacy Rules. The Court will also consider, although is not bound by, what the surviving spouse may have been entitled to if the relationship had ended by divorce instead of death.
To avoid expensive, long-running, emotionally charged and unpredictable Court proceedings, it is thankfully open to the parties to agree to re-write an unsatisfactory Will by creating Deed of Variation. Our specialist team at Bell & Buxton is experienced in quickly and effectively identifying the key issues and risks involved in these situations, and has a great track record in achieving settlements to limit the pain these cases inevitably bring. A no-obligation, free of charge consultation is available to those needing help.
John Breeze - Associate Solicitor