Second marriage inheritance wars

Posted on: April 3rd, 2018

One of the most common forms of inheritance dispute arises where children from a first marriage receive nothing from the estate of a deceased parent who has re-married.

The children often have an expectation to inherit at that time, even though had their parents still been married, that would have been unlikely until the second parent passed away.

Relations with the step-parent may often be mixed and understandably from the children’s’ point of view they see the eventual opportunity to inherit disappearing to the step-parent and or their own children or relations.

This type of case often involves the family home and as such the tensions are all the more too predictable. The step-parent has often lived in the house for a number of years, against the children who feel, but for the second marriage, they would have inherited because the house was their childhood home. This seems like an insoluble position and it’s therefore no surprise that huge family feuds can arise.

Another case with these issues was reported just before Easter in the Evening Standard with the headline, “No way my father would have left her that!”. A 1997 will left the entire estate to the step- mother, but a later will in 2012 left her only £15,000 and virtually the rest of the estate to the son. That total divergence set the battle lines.

According to the press report there has been a six-year legal battle between the deceased’s son and second wife, over the two wills, which have both have been ruled invalid. The press report doesn’t set out the full history of the challenge, but the wills would have been considered, most recent first. Once the most recent was ruled invalid the effect is that the earlier will then becomes operative and so it can be seen how the son had lost all. He must have then successfully challenged the earlier will and that made the estate intestate, that is, an estate without a will. 
Under the intestacy rules he would then still inherit a large portion of the estate, albeit far less than the 2012 will in his favour.

It appears that the son’s expectation is rooted in the feeling that he is entitled because his father’s side of the family had over four generations built up the estate. The implication appears to be that he feels the step-mother has brought little or nothing to the estate and worse was 30 years younger than his father. The classic perceived “gold-digger”, notwithstanding that the marriage had lasted 15 years.

The deceased’s widow is now reported to be seeking to appeal the decision about the 1997 will and to admit late evidence to confirm it’s validity. Judgement is awaited. She is said to be “a broken woman” as a result on the litigation and one can only imagine the huge legal costs.

There is no “fix-all” solution to these family tensions, but to a certain extent the expectations can be balanced if a will is written by solicitors. A common solution is for a life-interest trust to be set up. That type of trust allows the step-parent to live in the house or any replacement for life, often with a limitation that the trust will lapse if they re-marry or co-habit for a certain period. That way their housing needs are met and the children of the first marriage inherit on the step-parent’s eventual demise. This type of arrangement is not without pitfalls however such as creating tensions with a newly marrying second spouse and if that second marriage proves to be a long one, the trust may be challenged by the spouse as not leaving adequate provision. The drafting of such a will accordingly needs careful drafting coupled with wealth planning to achieve the best balance.

Where a dispute cannot be avoided, the benefit of using experienced inheritance disputes lawyers cannot be over-stated. There are difficult and complex issues to weigh which our specialist team can identify and bring the key issues to the table at an early stage to promote settlement.

Chris Gambs is an Associate Solicitor in our Inheritance and Wills Dispute team.