Currently 40% of marriages are second time round these days, and spouses and children of both first and second marriages are increasingly making claims where they feel they have been unfairly treated in the will of a former partner or parent.
And around 1000 new cases have been formally commenced in a three-year period according to recent figures by the Law Commission, which has highlighted the need for a change in the law to respond to the increasingly complex structure of families and increasing numbers of unmarried couples.
The problem was spelled out following the death of businessman Roy Lilleyman who bequeathed model cars, worth around £17,000, to his second wife Barbara, as well as some coins and 'limited rights of occupation' in the couple's two properties.
The majority of the estate was left to Mr Lilleyman's two sons from his previous marriage, Nigel and Christopher.
But Mrs Lilleyman, who had put the sale proceeds of her former house into property that was jointly owned with her husband, and had given up her job at her husband’s request to care for him, challenged the will on the basis that 'reasonable provision' entitled her to a 'substantial share' in the matrimonial property.
The claim was brought under the Inheritance (Provision for Family and Dependants) Act 1975 which allows the provisions of a will or an intestacy to be challenged if "reasonable provision" has not been made for a spouse or civil partner, a cohabitee, a child of the deceased or anyone else who was being maintained financially by the deceased when they were alive.
When the court considers whether or not reasonable financial provision has been made, factors include the needs and resources of the claimant and any other beneficiaries, the length and nature of the relationship with the deceased and the size of the estate. Spouses and civil partners are entitled to more generous provision under the Act than other classes of beneficiaries, which helped Mrs Lilleyman in her claim.
To make a claim under the Act, a disappointed beneficiary needs to bring any claim within six months from grant of probate, which is when the estate has been finalised and the assets distributed. For cohabitees, they need to show they were living with their partner throughout the two year period before they died, in the manner of a spouse or civil partner.
Said wills and trusts expert Mike Clary, Contentious Probate lawyer of Greenwich based solicitors Grant Saw : “People often put off writing their will, but when they do, it’s very important they understand the implications of their decision making, particularly when it comes to second marriages, where there are two different families to be satisfied in many cases.
“The person making the will won’t be around to see the problems, but it’s very unlikely they will secure the outcome they intended if they don’t take advice about what will and won’t cause problems later. Making a properly informed decision and sharing it with all the family is the best way.”
He added: “In the example of the Lilleymans, had Mr Lilleyman realised that his wife was entitled to a certain level of financial provision, it would have made more sense for him to leave her a larger inheritance, which would have avoided the costs to his estate and the damage to family relationships caused by the litigation.”
This is not legal advice; it is intended to provide information of general interest about current legal issues.