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Original poster

Urgent legal advice - mother's dp dying and not divorced from wife of 40 years ago. Implications for will.

30 replies

Yellowbowlbanana · 14/04/2021 11:46

My my mother's dp had a sudden diagnosis last week and is dying. We don't think he has that long and is deteriorating rapidly.
He spilt up from his wife over 40 years ago when she left him for another man (apparently, and we only have his side of things). He and my mother have been together for 25 years. The house is in joint names and their wills leave each other everything on event of one of them dying and then gets split 4 ways between the children. They have very little anyway and the house is still mortgaged.
Mum's DP wants them to get married which obviously requires him to get divorced first. I don't think we have time for this but I am worried about the implications of his ex-wife having claim to the house which would leave my mother destitute. She already stands to get his pension as it goes to his "spouse". The whole system seems so archaic.
Does anyone have any advice. We could probably get the divorce papers issued if that is required?
Thanks

OP posts:
Lumene · 14/04/2021 11:50

Try posting under legal OP, good luck.

iloverock · 14/04/2021 11:54

Get in touch with a wills solicitor now and they can do an emergency will

FrippEnos · 14/04/2021 11:57

As lumene posted.

but spouse could give you trouble, your mother really needs to be named on the will and on the pension.

Also check to see what the actual ownership of the property is.

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Family law
Ratonastick · 14/04/2021 11:58

You need urgent legal advice, you really do. A similar situation happened to my wonderful godfather and his partner of nearly 40 years. His death was unexpected and he left a handwritten (and unwitnessed) will only. It was horrendous, his wife (who he hadn’t seen since the early 60s) treated it as a lottery win and his partner in life was left virtually destitute. Please, please get to a good solicitor as soon as you possibly can.

PotteringAlong · 14/04/2021 12:01

You can usually name anyone you like on the pension, so he needs to
Contact the pension company ASAP and get your mum named.

ImaginaryCat · 14/04/2021 12:06

My parents hadn't seen each other for 20 years when my dad died. My mother was entitled to spousal pension and everything left in their endowment policy. If he'd had a partner that person would have got nothing. However, my parents had made the decision not to divorce so that my mother would get anything left upon my dad's death (in lieu of any financial support when he was alive).
Did your mum's DP ever explain why they never divorced? It might have been laziness but maybe there was a reason.

LadyIsabellaWrotham · 14/04/2021 12:14

He needs to double check the will to see whether it’s still appropriate, but if it was properly made and witnessed and clearly names your DM as beneficiary then there’s no particular reason why his spouse would have a claim after such a long time with no financial links. A witnessed letter to accompany the will explaining why he doesn’t want his wife to inherit anything would be a good move.

Ideally he’d divorce and marry your DM, but there may not be time especially if his wife doesn’t cooperate.

Horizons83 · 14/04/2021 12:24

Go to a private client solicitor and get urgent advice, but assuming you are in England and as you say, the house is owned as Joint Tenants, the house goes directly to your mother. I don't see how the wife could demand any ownership of the house itself.

If they already have a will then this again should be fine, the property should go to the individuals named in it. It is possible that the wife could launch a claim to the estate but if the will is clear and circumstances show that the couple have been apart for such a long time I do not think it likely that a judge would order any retribution of the state.

The pension issue is potentially impossible to resolve, if the rules of the pension state that it can only be paid to a spouse then there may be little you can do - that is something a solicitor could advise on.

I guess my main point is: they may of course want to marry in any case, but I don't think that rushing to try and marry is actually required to protect any assets. I would imagine trying to instigate a divorce would not only take too much time but may indeed focus the wife's mind on trying to obtain assets. But get a private client solicitor to provide proper advice.

Horizons83 · 14/04/2021 12:41

Also, bear in mind that if they do marry then this invalidates any current wills, so they would need to make new ones. It is also possible that the divorce itself would invalidate your mum’s DP’s will (don’t quote me on this) so again, I would recommend you take legal advice. It should not be too expensive as at this stage all you are looking for is a set out of the law, not a substantive piece of work, so I would think it would be less than £500.

Cardboardeaux · 14/04/2021 12:49

What type of pension is it? If it's final salary/defined benefit there may not be anything that can be done as if the survivor's pension is payable to the spouse then the trustees won't be able to deviate from that. There may be more flexibility if it is a personal pension scheme.

EggysMom · 14/04/2021 12:52

If the will is valid, your DM will inherit the estate. The only questionable point is the pension, DP needs to contact the pension administrators to ask about that - some schemes have changed from "spouse" to a nominated partner instead.

Cardboardeaux · 14/04/2021 12:53

Also, if the spouse is blocking a divorce then it may be worth your mum's DP speaking to the pension scheme managers to explain the situation and see if there is anything they would be able to do. (I used to work in pensions Smile)

IEat · 14/04/2021 12:54

Made me wonder why his ex has not filed fir divorce after 40 years. Does she have any work related relationship with him/children/ finances (homes etc)
She may not want anything after so long

MsTSwift · 14/04/2021 13:01

Horizon is right. If he has a valid will leaving estate to partner that is what will happen. Wife could make a claim but if separated years and self supporting can’t see that she will get much. She would likely get what she would have received on a divorce. A letter of wishes explaining the reasoning behind the will may help.

Anything owned jointly goes automatically to other joint owner anyway and doesn’t pass under the will.

Probably no time for divorce. This situation is weirdly common!

MsTSwift · 14/04/2021 13:02

Pension doesn’t pass under will speak to provider directly

MsTSwift · 14/04/2021 13:06

If they did get married that revokes their existing wills - unless those wills were made in contemplation of marriage to each other.

Weirdly divorce doesn’t revoke an existing will but the will is then read as if the former spouse had died. Anything to do with them fails but remainder of will stands

Bearfrills · 14/04/2021 13:22

I'd strongly recommend speaking to a solicitor. When FIL passed away he and MIL were still married but had been separated for twenty years, MIL took everything and his partner of those last twenty years had nothing. The one saving grace was that the house was solely in her name so MIL couldn't touch that but she took his pension, his bank accounts, his insurance money. A particular low point was MIL and her own DP banging on the widow's door at 9am on pension day to demand the money, they also didn't tell her where his funeral was leaving from or even whether she was going to be allowed to attend. Totally predictable situation and one that could have been prevented if they'd gotten legal advice and had the relevant paperwork in place beforehand.

tara66 · 14/04/2021 13:23

I think she would want to be ''joint tenant'' on the Deeds of house rather than ''tenants in common''. I think one is anyway ''joint tenant'' if it does not actually say ''tenants in common'' on the Deeds.

SeaToSki · 14/04/2021 13:35

Does that mean that the ex would officially be next of kin when he passes? Who is named as the executor of the will..can the ex claim that? The other bits might be too complicated to resolve in time, but a durable power of attorney and executor of the will might be a quick fix

Palavah · 14/04/2021 13:46

Definitely speak to a solicitor but do speak to the pension provider directly.

Chloemol · 14/04/2021 13:56

Ok so if he has a will that should not be a problem, as regards his pension he should be talking to the pension company and see what they say

One word of warning, if they get married any will they currently have is invalid and they would need to make new ones , and would he have time to sort a divorce?

Seek legal advice immediately

2bazookas · 14/04/2021 15:52

@PotteringAlong

You can usually name anyone you like on the pension, so he needs to Contact the pension company ASAP and get your mum named.
For a man of his vintage, a full-contributions NI state pension provides a widows pension ( half the basic) payable only to a married wife who qualifies. (OP's MUM doesn't because they are not married).
Original poster
Yellowbowlbanana · 14/04/2021 16:03

Thank you for all the responses. I think because they took advice on their wills which are recent and have been witnessed then the house will be okay. I don't think the pension is easily solvable. They have very little between them anyway but I want to make sure my mum has something to live off.

OP posts:
Lockdownbear · 14/04/2021 16:16

I'd definitely think they should seek legal advice, I'd hope they'd have discussed all of it when they bought the house.

Might be worth moving savings into her name rather than allowing them to become part of the estate.

MixedUpFiles · 14/04/2021 16:33

Does he have contact with his wife and is she a reasonable person? After 40 years she may simply agree to a quick and simple divorce and severing of all financial claims.