It’s a fact that nobody likes talking about Wills and inheritance. We’re the first to admit it’s not the most exciting subject, but it can’t be denied that it’s a very important subject and one that can cause a great deal of family upset and resentment if it’s not addressed.
It’s another fact that a lot of families are combined families, that is a couple with children from previous relationships. As an example, take a married couple who each have two children of their own from previous marriages. All the children are under 18 and living at the family home. So we have husband, wife and four children all under one roof. Nothing unusual there you might think (and in case you’re wondering the facts apply equally to civil partnerships and same-sex marriages, but not to unmarried couples/co-habitees because the law applies to them in a different manner).
What needs to be considered carefully by our example combined family is the question of inheritance. This is where the problems begin, because most people in this situation do nothing about it, and this leads to serious issues later on.
What the adults need to think about is what would happen if one of them wasn’t around anymore – accident, illness, whatever it may be. Where does that leave the rest of the family? Let’s look at a likely situation and see what the consequences are.
Take the situation where neither adult has a Will in place. They may never have made a Will, or they could have done but then got married for the second time. Marriage revokes a Will, and the only exception is where the Will is made in contemplation of the marriage (very rare in our experience). So we have husband and wife each of whom has two children from their previous marriages, but no children together, and no Wills in sight. What can possibly go wrong?
Say husband dies in an accident. He dies intestate (without a Will), so the Intestacy Rules apply and govern what happens to his estate (meaning all his property and possessions). He owned a house in joint names with his surviving spouse, but how did they hold it? Let’s say they were joint tenants – this is what most people opt for. The consequence of this is that the house passes automatically to the wife under the rule of survivorship. She also gets all her husband’s personal possessions (whatever their value). This includes his car. You can quickly see that the wife is likely to inherit most, if not all, of her late husband’s estate. Where does this leave the husband’s children? Well none of them gets anything from husband because he didn’t make a Will leaving them anything. The danger now is that wife doesn’t bother to make a Will herself. On her death, what happens? It all goes to wife’s two children from her previous marriage, and husband’s two children get nothing, because they are stepchildren, not related to wife, and not entitled to benefit under the Intestacy Rules.
Husband’s two children feel very upset by this, and who can blame them? They’ve done nothing wrong yet end up completely disinherited by operation of law. Is this what husband would have wanted for his children? Of course not. What could have been done to achieve a different result?
Husband could have made a Will for a start. The law of intestacy didn’t produce a good result. But making a Will has dangers in this situation too. The usual husband/wife mirror Wills would not be good enough here because in a mirror Will each partner leaves his or her estate to the surviving partner on first death. If husband had made such a Will leaving everything to wife, there would be nothing to stop wife leaving it all to her own children, thus creating the same situation as if there was no Will at all.
A solution would have been for husband to make a Will leaving part of his estate to wife and part to his two children. This way, his children definitely get to inherit something. Of course, it depends on husband’s priorities – does he favour his spouse or his children, and does he feel any obligation towards wife’s children (his stepchildren, to whom he is not legally related)? There’s no right or wrong answer, it depends on husband’s wishes, but a fair result is not going to be achieved without careful thought followed by action, that is, actually getting around to making a Will setting out his intentions. In this situation it’s sensible to sever the joint tenancy in the house, enabling the parties to dispose of their shares of the property by Will (see our blog on joint ownership for a more in-depth explanation).
This is the common problem facing combined families and it’s an issue that definitely needs addressing, because the consequences of getting it wrong are that your children end up with nothing. Sure, there are conflicting obligations – do you, as a spouse in a combined family, leave more to your spouse, more to your children, or do you treat them equally and leave them 50/50? These are decisions you have to make to try and do the right thing by your family. They aren’t easy decisions, and you stand a chance of upsetting one or more of your relatives, but if you’re in a combined family you have a moral obligation to think about this and act accordingly. The bottom line here is to guard against your children being disinherited, whether this be by accident or design. Children left out in this way have been known to challenge the Will by making a claim for provision under the Inheritance (Provision for Family and Dependants) Act 1975. Obviously, no court case is welcome, especially one potentially involving members of the same family. Another reason to avoid such a case is that the costs of it (which can be substantial) often come out of the estate, thus reducing the available assets for distribution. In short, it’s a disaster for everyone concerned (except the lawyers!) and needs to be avoided.
These are some of the reasons why combined families should think long and hard about their affairs and draw up Wills which suit their circumstances. It can be a difficult balance to get right, and professional advice may help. We have long experience in this area and would be happy to talk things through if you have any concerns.