Talk

Advanced search

Mumsnet has not checked the qualifications of anyone posting here. If you have any legal concerns we suggest you consult a solicitor.

How valid is the declaration of trust and will after marrying someone?

(21 Posts)
Butterflylovers Wed 08-Jan-14 16:33:56

Let’s say you bought a property on a tenants in common basis with your partner.
You have a declaration of trust drawn up detailing what % ownership, details of what happens if you sell, and you have a will stating your share is to go to someone else but your partner has a life interest on the property….
But how valid are these if you marry your partner and subsequently divorce?
By marrying, would a lot of these be overridden?
Would the court take into consideration of your declaration of trust and will?

Butterflylovers Wed 08-Jan-14 16:40:55

Forgot to add we are unlikely to have children.

mumblechum1 Wed 08-Jan-14 19:52:44

Marriage normally revokes an existing will. I'm a willwriter and if the client expects to marry then I always put in a clause to say that the will is made in contemplation of marriage and that it will not be revoked if that marriage takes place (and I then go on to say that it will remain valid even if they don't marry).

Did your will writer put that clause in? They may not have done if you didn't tell them of your plans.

So far as the deed of trust is concerned, if you marry, then divorce, the court is not bound by the deed of trust but will take it into account. Much would depend on the length of marriage, other factors such as contributions by both sides, etc etc.

sykadelic15 Wed 08-Jan-14 23:59:05

Agree with mumble but want to add, while marriage invalidates a Will, a divorce typically DOES NOT. So you want to make sure to check it if you divorce and make sure it still reflects your wishes.

mumblechum1 Thu 09-Jan-14 07:51:57

Divorce, at the decree absolute stage, DOES automatically revoke the appointment of a spouse as executor and beneficiary of any gift under the will. The rest of the will remains valid, but it's always a good idea to review a will upon divorce anyway.

Ladyflip Thu 09-Jan-14 07:58:07

Mumblechum has it right. If you marry, you could make a new will, similarly if you divorce. I always advise clients to make a will for the position they are in now, and look at it at least every five years to assure yourself it is still appropriate.

babybarrister Thu 09-Jan-14 09:21:33

on marriage your declaration of trust will not be invalid but merely will be evidence of your contribution which is one of the s25 matrimonial causes act 1973 ie it will not be ring fenced

Butterflylovers Thu 09-Jan-14 11:29:53

If your main asset is the share of the property and you would like it to go to lets’s say your sibblings.
What steps above deed of declaration and will can you take to ensure it goes to them in the event you do get married and subsequently divorced?
Put asset in a trust in the sibblings’ names?

mumblechum1 Thu 09-Jan-14 13:55:44

God no, that would be a really bad idea Butterfly; what if the siblings get divorced - the asset would be up for grabs within their divorce. If the siblings died the assets would potentially go to their beneficiaries.

Butterflylovers Thu 09-Jan-14 14:11:55

ok maybe not sibblings but nieces and nephews, God children.
I was using sibbling as an example of someone who is not the partner.

Ladyflip Thu 09-Jan-14 14:50:38

I think you are probably best advised to remake your will as quickly as possible when life events happen.Nieces and nephews have the same problems as siblings I.e. You are putting it out of your control. What is they spend it, go bankrupt, etc?

The arm of the law stretches long though. If you have been cohabiting for 2 years, your partner could have a claim against your estate under the inheritance (provision for dependants ) Act.

What are you actually trying to achieve? To leave nothing to your partner?

Butterflylovers Thu 09-Jan-14 15:17:02

I am just thinking hypothetically.
What if your partner is a spendthrift, much younger than you. If he is to survive you, you don’t want him to be homeless (hence the life interest) but yet you don't want him to inherit your share of the house in case he wastes it all, or meet someone else and it goes to them and not a penny to someone you intended to have!

This scenario could be similar to two mature single people, lets say they each have children from their previous relationships and they each want to make sure that their own kids inherit their respective assets.

Butterflylovers Thu 09-Jan-14 15:25:08

I guess what I am trying to ask is
What steps (as well as the declaration of trust and will) can you take to ensure that your share of the house goes to person X which ensures your partner is not homeless in the event of your death AND to protect your share of the house in the event of you marrying your partner and the marriage fails.

babybarrister Thu 09-Jan-14 16:37:52

you cannot guarantee your assets remain yours if you marry - so don't marry!

mumblechum1 Thu 09-Jan-14 16:41:24

As BB says, if it's a serious concern, don't get married.

JKramer Thu 09-Jan-14 19:02:42

I thought you could put your share of the assets in a trust in your beneficiary's name and this would have some protection?

Ladyflip Thu 09-Jan-14 20:34:29

You can have leave your partner a life interest in the property which would keep a roof over his/her head but means they can't spend it, mortgage it etc. But if you later split up, the best advice would be to make a new will sharpish.

If you divorce though, all your assets are up for grabs at that point. You could go for a pre-nup to try and avoid him making a claim? Family law not my area of expertise but they are not necessarily binding unless circumstances haven't changed much and everyone was properly advised at the outset. Which brings you back to BBs advice, don't get married!

babybarrister Thu 09-Jan-14 21:15:58

if assets are not yours as they are GENUINELY someone else's as they are now in trust for another person, then they cannot be transferred to your ex BUT family courts are very, very experienced in unpicking sham trusts .....

ClaireLouise44 Thu 27-Feb-14 22:02:07

I moved in with my boyfriend in 2004. We brought a house together in 2005. I signed a declaration of trust - tenancy in common. I had not legal advise at this point. the remainder of the house was mortgaged jointly. The house is now paid for in full after years of struggling financially to satisfy my husbands desire to be mortgage free.

We married in 2008 after he proposed to me. We had a child in 2010 via IVF treatment.

We are just going through a divorce and was wondering if the declaration of trust was still valid or court the divorce courts over rule it?

prh47bridge Thu 27-Feb-14 23:34:41

The declaration of trust is not invalid but that doesn't mean the property will be split in the proportions it says. It will simply show how much each of you has contributed. That is one of the factors in determining how it is split but not the only one.

teago200 Thu 04-Jun-15 10:10:17

I need advice and Asap I did a deed of trust a few months ago the house me and my husband live in I bought before I married . But he's done a lot of work on the house , so I thought it only fair that he got an equal share in the house so I did the deed giving him 50 percent with a lot of badgering from him , worst move I've ever made he has turned into the biggest most horrible pig I've ever met verbally and physically abusive I've moved out of the house he has filed for divorce I feel like the biggest idiot on earth sorry about the spelling mistakes I can't even think straight

Join the discussion

Join the discussion

Registering is free, easy, and means you can join in the discussion, get discounts, win prizes and lots more.

Register now