Making a New Will Following a Second Marriage

The problem

Our clients had just got married and needed to make new wills. Both clients had children from previous marriages. They wanted to ensure their wills allowed for their children to benefit from their estate, while also ensuring their spouse would be cared for.

The process

We suggested the clients make a provision for a Life Interest Trust in their wills. This would allow each of them to leave their share of their home to their respective children while also ensuring their spouse could continue to live in the house for the remainder of their lifetime.

How this helped

Our clients were newly married, though both had children from previous relationships. When you get married, any Will you have previously written becomes automatically invalid; unless it was written in specific contemplation of the marriage. The clients therefore came to us to prepare new wills.

The main concern for these clients was that they wanted to protect each other in their wills without affecting their children’s inheritances. The simplest way to do this would be to prepare mirror wills that left everything to the surviving spouse on the first death, then split the estate between all the children on the second. However, this would be entirely on trust.

For example: spouse one could leave their whole estate to spouse two on the understanding that on spouse two’s death their collective estate would be split equally between both sets of children. However, after spouse one’s death, spouse two would be completely within their rights to change their Will to leave the whole estate to their own children, cutting spouse one’s children out entirely.

We suggested that it would remove any guesswork or uncertainty on the part of the children to make sure these agreements were legally sound. This meant preparing wills that included a Life Interest Trust (also known as an Interest in Possession Trust). In our client’s case, this meant that they each planned to leave their half of the house to their own children but the Life Interest Trust gave the surviving spouse the right to continue to live in the house as if it were their own for the remainder of their lifetime.

As well as preparing these wills, we assisted the clients in ensuring their property was held as ‘joint tenants in common’ with the Land Registry. This meant they would each have the right to leave their half of the property to their children rather than directly to the other joint owner.

This particular arrangement also meant that should one surviving spouse require means-tested residential care later in life, only their half of the value of the property would be taken into account. Again, this protects the inheritance interests of each spouse’s children separately.

Our clients were able to sign their wills with the knowledge that they were protecting each other’s interests without it being at the expense of their children.