The situation of Roger Jones, as you may have seen in the news recently, is becoming all too common for many families across England and Wales.
Jennifer Robinson, paralegal in the private client team at Wake Smith Solicitors looks at how extended families and inheritance can be complicated, particularly if mirror Wills are involved.
“The scenario appears straightforward at first as Mr Jones has 4 children with his first wife. They divorce and Mr Jones remarries. Mr Jones’ second wife has 2 children from her previous relationship. Mr and Mrs Jones draw up mirror Wills leaving everything to each other on the first death and then to all 6 children on the second death.
“However the above scenario fails to take into account, what if after the first death, the surviving spouse draws up a new Will?
“This is exactly what happened in the situation of Roger Jones. He wrote his Will leaving everything to his wife and died in October 2007. However after his death, his widow rewrote her Will and only left her estate to her two children.
“Mr Jones’ children have now discovered, more than a decade after their father’s death, they are unlikely to get anything from his estate, worth approximately £300,000 as a result of their stepmother changing her Will.
“In England and Wales, we are fortunate as we have testamentary freedom (with the exception of the Inheritance (Provisions for Family and Dependents) Act 1975).
“Unlike other countries, we do not have a forced heirship where the children of the deceased automatically benefits from the estate. As long as we are of sound mind when we make our Will, it is ultimately our choice as to who we leave our estate to.
“However, as a result, this highlights the downsides of a mirror Will. Whilst on the first death, everything appears straight forward and we may feel satisfied that we know where our estate is going; it does not take into account that after the first death, the surviving spouse can change their Will.
“Mirror Wills are commonly used by married couples, but they require an element of trust. A way to avoid the above scenario occurring for your family is to consider a “property protection” Will.
“A “property protection” Will is a Will which contains a life interest trust so that on your death, you provide your spouse with the right and protection to remain in the property for the remainder of their lifetime.
“However your interest in your home, usually half, would be passed to your appointed Trustees who would look after your share for the benefit of your choice of beneficiaries.
“This effectively allows you to “ring-fence” your share of the property on the first death and give you the reassurance that your choice of beneficiaries will not be disinherited, even if the surviving spouse changes their Will.”
If you are concerned by any of the issues raised above and would like to discuss further with a member of Wake Smith’s probate team, please contact us on 0114 266 6660 or at [email protected]
