When people seek legal advice following a marriage breakdown, one of the first steps they should be advised to take, is to make a Will. This is to ensure that in the event of their death, their assets don’t all pass to their estranged spouse. Very often, we find people in this situation wish to leave their assets directly to their children.
However, if they were to die before the division of marital assets had been formalised by a Court Order, their estranged spouse may have a claim against their estate under the Inheritance (Provision for Family and Dependants) Act 1925.
If the Will leaves everything to the children, then providing those children are all aged over 18 and are agreeable, a variation to the terms of the Will can be made to resolve the situation.
However, if any children are under 18 the Executors of the Will can’t agree to any variation without the approval of the Court. Even where an amicable agreement with the estranged spouse is reached, such applications for the Court’s approval can be expensive, with the children requiring separate legal representation.
These complications can be avoided if the Will bequeaths the estate into a discretionary trust. A letter of wishes can make it clear that the aim is for the children to benefit, but the Executors will then have the flexibility to negotiate and accommodate an agreement with an estranged spouse – without the expense and conflict of litigation.