The complexities of wills: why seeking professional advice is so important

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After a divorce or the death of a spouse, it is commonplace for subsequent relationships to come with children from previous relationships on either side.

If the relationship works out and strong bonds are built with the new partner’s children, there may be a consideration to add them to your will – but the position can become complicated quite easily.

Say for instance Gary met June, they married, and had three children. Their wills may well have said to leave all assets to each other and then the children. June sadly dies first. Gary then marries Sandra, who has two adult children of her own. They both remake their wills to leave everything to each other and then to the five children equally.

Gary dies and about a year later Sandra makes her will again mentioning only her two children. Gary’s children therefore are unlikely to see anything from the estates of either of their parents unless there are grounds for them to claim a part of Sandra’s estate.

Making a will is not as easy as you may think. If Gary and Sandra had sought professional help in the above scenario, their lawyers would have challenged their thought processes and the consequences of the wills that they made would have been highlighted and discussed to see whether they were still the best option. 

It is not easy from the adviser’s point of view; in our roles we have to effectively ‘burst the happy bubble’ and point out what could happen. We support many clients where they feel as if they have been cheated out of an inheritance because a second spouse has excluded them from their will, after the death of their parent.

There are steps that can be taken to protect your assets from such changes in the future – if you consult with a professional to draft a will it is not just a will, but your will, specifically tailored to your requirements. All family circumstances are taken into account, the future is considered, and we will raise the awkward questions to ensure we can offer you the best help possible. This involves ‘estate planning’ rather than just a will:

  • How are you looking to share wealth with future generations?
  • What do you believe should stay in your blood line?
  • What are the risks of omitting someone from a will – can they make a claim?
  • What happens if your second spouse does later omit your children – are you comfortable with them doing this or do you want to ensure that your children do inherit something?

Wills can be drafted to protect your own assets and to leave them down your bloodline if you wish. There are more draconian wills called ‘mutual wills’ which also involve entering into a contract and this prevents a spouse altering the disposition of the agreed estate after the death of the first spouse. However, they are not something that should be entered in to lightly and are more complicated and costly.

Testamentary freedom has been the cornerstone of wills for years, meaning you are able to change your will as many times as you wish to and there are no broken rules if you do so after the death of a loved one.

If you add in a business asset to the process, then you also have to address the impact of death on the business and consider whether there are full succession plans:

  • Will anyone’s divorce affect that business? 
  • Do those left behind want the business or do they have the skills to run it?

What is clear is that there is a lot to consider when it comes to sorting out your will, and that complexity is only added to given the emotivity of the subject and lasting consequences for the future. One piece of simple advice would be to speak openly to those who are likely beneficiaries of the will, and those who may assume they will be beneficiaries, to help ensure any disagreements that could come further down the line are limited.

Gateley Plc is authorised and regulated by the SRA (Solicitors' Regulation Authority). Please visit the SRA website for details of the professional conduct rules which Gateley Legal must comply with.

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