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Separated from husband, he is writing a will next week

(19 Posts)
vole3 Wed 19-Oct-11 07:39:06

He has got an appointment booked next week regarding writing his will.

I know he will ensure that everything, bar a few small bequests, will go to DS, but that will not recognise that I will then be the sole provider for DS. He will leave DS his share of our home, but what if I need to move / downsize, how will I provide for DS's first car, university without the funds or ability to raise them other than by selling my home when I am approaching retirement age. OK, 54 is not quite retirement, but with only another 7 - 11 years of earning potential I will not be in a position to raise another mortgage easily.

I have suggested that he needs to take out another life insurance policy to cover maintenance until DS is 21 to allow for this (thank you BG at work who mentioned that this is what her friend managed to arrange).

If he leaves me a token bequest, can I then challenge the will if I believe it has been drafted in a way to leave DS 'paper rich' but me 'cash poor' or without the ability to raise funds from things held in trust for DS. DS is currently 4, so there is a lot of years to go before he will be independent of us financially.

I know I would no longer have the mortgage to pay, but over time the effective value of that amount will decrease.

vole3 Wed 19-Oct-11 07:40:09

By the way, we are not legally separated or have instructed anybody regarding divorce yet.

cjbartlett Wed 19-Oct-11 07:47:34

Surely once you separate from someone they don't need to make sure you're financially ok after they die
His duty is to ds, not you
You need to find a means to earn enough to provide for your future .

is he taking care of your ds maintenance wise at the moment?

Perhaps you should think about a divorce and get everything done legally

ASuitableGirl Wed 19-Oct-11 07:52:55

H and I are separated - neither of us has a will (I really must do one blush) but I think it's up to him what he does with his money. I think I am still named as the beneficiary were he to die in terms of his work pension but apart from that I see it as up to me to deal with the financial position for the DC. I don't think you can make him take out financial products or leave anything to you really.

Northernlurker Wed 19-Oct-11 08:07:40

If you are seperated (and I assume divorcing at some point) then he should ensure his child is provided for - which he will do by leaving him a substantial asset. He isn't obliged to provide for you in order that you provide for ds - and how would that be enforced anyway? If you benefited from an insurance policy say, you could take the cash, dump ds with neighbours and clear off to the Caribbean. I know you would never do that but when a marriage has broken down there isn't the same security of expectations as there was before so I think it is perfectly usual for everything to be left to the child and not to the former spouse except as a trustee. You would benefit by having the mortgage paid off and tbh I think that will have to be enough for you.

vole3 Wed 19-Oct-11 08:25:42

He says he will provide for DS and maintain his current standard of living.

He does provide some childcare and I do work full time. However, without his help with childcare or payment towards the other childcare costs, I would have to reduce my work hours and be worse off by the equivalent of mortgage (which I have been sole payer for the last 11 years!!), so no better off.

I do have a progresseive degenerative condition, which whilst currently stable, there is no guarantee I will be able to work until retirement age.

vole3 Wed 19-Oct-11 08:38:24

Here is the link to my original thread on relationships.

He left the marital home 3 1/2 months ago and we are going to relate, but not with any hope to get back together on his part.

It seems unfair that whilst he is alive he will share in all DS expenses, and payments will increase over time, but if he were to die I will be left as the sole provider and the effective value of any money I will be 'saving' will diminish as DS needs increase.

HeidiHole Wed 19-Oct-11 08:39:39

Is that right, you are 54 now? And your DS is4? I tinkn that after you separate your DH responsibility is to your son, not to if you want to downsize in later life etc

vole3 Wed 19-Oct-11 08:53:18

No, I am 40 now, but by the time DS wants to go to university or spread his wings I will be 54.

I may need to downsize, move to keep a job, DS may need me to release equity for his needs and want to ensure I would be able to do it.

youllbewaiting Wed 19-Oct-11 09:29:05

What have you put in place if you die?

As he'd be the main provider

mollymole Wed 19-Oct-11 09:35:13

You come across as a very calculating person, however, as I do not know you this is only based on the wording of your post. Surely, after you have separated you would not expect your own living to be financed. Your soon to be ex does seem to be being very fair in the way he is providing for your son.

vole3 Wed 19-Oct-11 09:47:40

Nothing as yet.

Mortgage will be paid off and he'll get the house and everything in it until I get my will done. The only thing that would be different once my will is done is that my share of the house would be held in trust for DS, I would have a few personal items bequested but anything in the house that DS needs would go to X to be used for DS benefit. I would want it worded such that X could sell the property if necessary whilst DS is under the age of 21 and use the proceeds to fund the purchase of a new property, but that DS would have a charge on it (or any subsequent purchases) to the value of his share.

I have no debts (cannot say the same for him), a survivor pension will be paid to my legal spouse but the lump sum death payment will go to my son and I will arrange it so that it is to be held in trust for when he needs it for university, vocational qualifications or deposit for a house etc.

vole3 Wed 19-Oct-11 09:55:56

I should also mention that my in-laws are comfortably off and have made separate provision for DS and prior to our separation all 3 of us had been named as equal beneficiaries in their wills. I guess until they change it I still am. X is an only child and DS their only grandchild.

So, if I die, DS will be well provided for by both me and his Grandparents. If X dies, I only have half what I have worked for and that may come with stipulations on how I can manage it.

prh47bridge Wed 19-Oct-11 10:01:34

To those who are saying that the OP's husband doesn't need to make provision for her when he dies, can I suggest you think it through properly. They are separated, not divorced. If and when they divorce there will be a financial settlement which may require her husband to pay her a lump sum. What you are saying is the OP can lose out on money that is rightfully hers if he dies. Thankfully the law does not agree with you.

If he does make out a will in these terms and dies you could potentially challenge it under the Inheritance Act. You will need specialist advice if you need to go down that route. In broad terms the courts are likely to want to ensure that you are in much the same position financially as you would have been if you divorced on the day he died.

Hopefully he won't die so this won't be an issue.

vole3 Wed 19-Oct-11 10:23:31

Am I calculating, no.

I am still in shock that until 4 months ago my future and that of our son was relatively assured. If he chooses he can walk off into the sunset, say he will pay for our son but not and cut us both off without a penny.

I worked and paid for our, meaning my, X's and DS's, future. Now that he has chosen to leave, I will assure DS's future in the home DS currently lives in.

vole3 Wed 19-Oct-11 10:29:20

No, I do not expect my living to be financed by X, who is still my husband legally until either of us decide to do something about it.

What I would hope is that the onoing need for DS living expenses will be accounted for by any will he makes.

STIDW Wed 19-Oct-11 10:58:57

Listen to prh47bridge who is a lawyer and gives the correct advice. When you are still married and your spouse dies you can still claim under the Inheritance Act and the court would be likely to leave you in the same position as if you had divorce.

If your husband dies after divorce and fails to provide decent provision for dependents the will can be contested and the court can make an order against his estate.

mumblechum1 Wed 19-Oct-11 11:01:56

tbh, you ought really be getting on with the divorce. Apart from anything else, if the house is held as joint tenants and one of you dies, the other will inherit the deceased's share notwithstanding what is in either of your wills. Your divorce solicitor will advise you to consinder severing the joint tenancy.

If he doesn't give adequate provision for your son in his will, you can make an application on your son's behalf under the Inheritance (Provision for Family and Dependants) Act 1975, but within the financial settlement linked to the divorce proceedings, there is likely to be a dismissal of both your and your husband's claims against one another's estates.

It would also be sensible for you to do a will now, and specifically exclude your husband as beneficiary until the divorce is finalised (once the Decree Absolute is issued, any provision for a beneficiary is automatically revoked).

You can find a divorce lawyer on the website www.resolution.org.uk

mumblechum1 Wed 19-Oct-11 11:04:04

Cross posted with STIDW. Thing is though, STIDW, the court is only likely to make an order for the child, as the mother's claims will usually be dismissed (unless of course there's provision for spousal mtce, but I'm finding those few and far between these days)

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