Wills and second marriages

“That’s not what they would have wanted” is the most common phrase we hear from disappointed family members who discover that they are going to inherit less than they thought, or nothing at all, from the estate of a loved one. 

Typically, such statements are made by children of a first marriage; stepchildren who discover that their stepparent has changed their will leaving everything to their own children and cutting them out.

As Tim describes in his article overleaf, it is usual for spouses, whether it be a first or second marriage, to make wills leaving everything to each other. This neatly divides the combined estate to all their children when the second of the couple dies. However, it is important to remember that, unless they have made mutual wills, the surviving spouse can change their will at any time. Whilst it is possible for people to remain close following a bereavement, time moves on and in some cases the step relationships become more distant. This results in the surviving spouse no longer feeling duty bound to benefit their stepchildren on their death. Whilst this appears sensible given that there is no rule of forced heirship in England, it can be unfair as it essentially means that the surviving spouse’s beneficiaries will also inherit the deceased’s estate, which is not what they would have wanted.

In order to benefit from their deceased parents’ estate, it will be necessary for the children to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The Act allows certain classes of people, including children, to bring a claim against the estate to alter the value of their benefit under the will, on the basis that they have not left adequate financial provision. When deciding such claims, the court will look to award what is reasonable provision for maintenance, considering a number of factors such as the deceased’s moral obligations and the size of the estate. However, such claims are time consuming and involve engaging in litigation, which can cost thousands of pounds. There is then a risk that the estate could be substantially depleted through funding legal fees.

It is important to take specialist legal advice on making your will, especially where there is a second marriage, to ensure that your assets are protected and that your chosen beneficiaries inherit from your estate.

If you need advice on making a will or disputing a will, we have specialist will and inheritance dispute lawyers on hand to help you.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.