Wills & Extended Families

I often take instructions from couples wanting to make a Will who have remarried, or re-partnered, as they say.  One tricky issue that inevitably arises where each has children from a previous relationship is how to ensure your own children will be looked after when you die.  It can be quite a sensitive issue in a new relationship.  Often with couples their Wills are made out to consider each other firstly and then there is a contingency in the case one has already passed away, that it go to the children.  Often the children of both partners are included but what if, after you have gone, things change.  What if your spouse or partner were to re-partner or marry again.  The concern here is that if the survivor changes their Will leaving out your children they can potentially miss out altogether.  When you make the Will you will need to consider some options or the best way to deal with the situation so you can take care of your spouse and your own children.  If you leave your share all to your own children then your spouse may find themselves in difficulty or even kicked out of the marital home.  Do you trust your spouse to leave your share to your children when they die?  There are many issues to consider.  There are a range of options that need to be considered at the time of making your Will.  You may need to structure the way your assets are held, if you hold real estate as joint tenants on the first of you to pass away it will pass directly to the survivor.  If the home is owned as tenants in common so you have a share each, arranging a Life Estate in your share of the property may be one way to deal with this situation.  Perhaps a Right of Residence is the way to go.  Another option is what is known as ‘Mutual Wills’.  Mutual Wills include an agreement where you agree not to change you Will after the first to pass away has died, to disadvantage the others children.  The Wills are made conditional on each other doing this.  If one were to later change their mind a beneficiary may be entitled to ‘sue in contract’, through the court for their share.  It can be a complicated situation so you need to get good advice on how to structure your Will to suit your individual circumstances and ensure your final wishes are carried out just the way you hope.  Give us a call at Johnston Tobin Solicitors if you need to discuss your situation.