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Original poster

WILLS & WHERE IT GOES!!!

46 replies

lozzawoo · 27/03/2007 18:02

My father married three years ago but has never made a will since 1997. He included his children in this but now he has remarried does this will still apply if none other has been made?? Sorry bit confusing lol...it confuses me!!!

OP posts:
flack · 27/03/2007 19:09

I think the old will would still apply but his new wife could successfully challenge it (in theory).

RTKangaMummy · 27/03/2007 19:19

iirc hulababy's DH is a lawyer he will have the answer

I have a feeling if you marry it deffo changes the will but am not 100% sure

RubyRioja · 27/03/2007 19:20

This reply has been deleted

Message withdrawn at poster's request.

Original poster
lozzawoo · 27/03/2007 19:23

He won't write another will so it looks like it all goes to her & her kids & his kids lose out. It is not about the money it is the priciple of it. It annoys me so much......

OP posts:
Freckle · 27/03/2007 19:25

Divorce annuls a will, not marriage as far as I know.

The old will would stand, but, as a dependent, his new wife could make a claim on the will. She wouldn't be entitled to all of his assets, but she would probably get something.

Freckle · 27/03/2007 19:28

Sorry, got that a bit skewed. When you divorce, your ex is considered in law to have died at that point (nice!), so will not receive anything left to them in the will unless the will specifically shows that they should.

If you marry or remarry any existing will is revoked unless it was made in contemplation of that marriage.

zippitippitoes · 27/03/2007 19:38

I thought both divorce and marriage automatically invalidate a will previously made

so the rules of intestacy apply which is something like the new wife gets 125k and the car, personal stuff and the children and share the rest and other relatives can also stake a claim

it's abit more detyailed than that but something like

Freckle · 27/03/2007 22:10

Divorce only revokes a will insofar as it relates to the ex-spouse. Other provisions will still hold.

flack · 28/03/2007 19:43

bumping thisup coz i want a lawyer to see it and give def. answer

Ladymuck · 28/03/2007 21:15

Freckle is (was) a lawyer?

SherlockLGJ · 28/03/2007 21:19

Freckle

I trust you as a lawyer.

Do you know in all the years on here it never occured to me to ask you a question. I do have one and it is fairly easy and I suspect I know the answer, but if you have a spare five minutes I would be grateful.

TIA

Judy1234 · 28/03/2007 22:02

This seems to be consistent with what freckle says too

"The effect of re-marriage on Wills and intestacy
Re-marriage has the effect of revoking (cancelling) your Will unless your Will has been specially worded to avoid this.
Your new husband or wife becomes your next of kin and so benefits from the intestacy rules if
you die without a valid Will. You need to be aware that this could cut out your children from your first marriage from benefiting from your estate."

So applying that here on the remarriage your father's will was revoked unless it says it carries on after marriage (read its terms). If he then dies intestate then I think his children benefit as well as his new wife however under intestacy rules.

Freckle · 28/03/2007 22:51

LGJ, ask away. I should add that I am a mere former lawyer, not a currently practising one.

SherlockLGJ · 28/03/2007 23:14

DH's Mum died 1999.

Second marriage for his DM and her DH

She left her share portfolio to DH and his Sis.

The will is in attic, (see how material we are not)

In essence it goes like this.

Portfolio to DH and Sis.

Then on the demise of her DH her 50% of the house to go her children and his 50% of the house and his portfolio to go his children.

However he remarried and sold his marital home as did his new wife.

They now own a property together.

He is a lovely man but a bit bombastic/Daily Mail.

If he changed his will on remarrying without any due deference to the wishes of MIL is that pretty much it.

Have resigned ourselves to this fact, so no need to dress it up.

TIA.

Freckle · 29/03/2007 05:53

Was all this contained in your mum's will? It sounds as though she left her dh a life interest in her share of the house, in which case he shouldn't have been able to sell it without some reference to you and your sister, or at least your interest in your mum's share being registered against the new house.

If I were you, I'd venture up into the attic to check the will. If this is the case, you ought to seek some legal advice. You may think "oh why bother", but this is likely to represent a substantial amount of money which could put your children through university!

Freckle · 29/03/2007 05:53

Sorry, reference to your dh and his sister.

Judy1234 · 29/03/2007 08:33

Yes, it's not just a question about the father's will but his mother's will, isn't it?

So in 1997 father made a will. Two years later in 1999 his mother died leaving a will. Then in 2004 he remarried. When he remarried that was revoked - see what Freckle and I said below. So now he has no will. If he dies then the intestacy rules apply as to who gets what.

Those rules say
"Married person with children

Spouse gets everything up to £125,000 & personal possessions.

  • Anything remaining is divided into two:- o Half to the children at 18 or earlier marriage. o Half in trust during spouse's lifetime - he or she gets the income. On spouse's death this half goes to the children.

If a child predeceases, leaving issue, his issue will take his share between them."

Your father now owns a house with his new wife which is probably in joint names so without a will that goes to her I think outside of the will as it's jointly held. Then what is left is divided as set out above.

Looking at what came from his mother - assuming your father's mother's husband is now dead, on her death your father got half her house. That is included in what he now leaves unless he got the cash and used it to buy his present house. Other 50% of mother's and her husband's house went to his chidlren. Seems a very simple will and your husband inherited under it.

You need to read again your father's and his mother's will - your father's might say if he remarries it isn't revoked and change the normal rules. If he really has no will now his new wife gets the house in joint names I think - their current home and £125,000 of his assets over and above that. If he has more than that it is divided as above - doesn't matter how he came by it - inheritance from his mother or whatever.

SherlockLGJ · 29/03/2007 08:42

It was contained in DH's Mums will.

Will check the document and get back to you.

Many thanks.

Hulababy · 29/03/2007 08:55

Divorce does NOT annual a will! Marriage does though.

If he hasn't made a will since remarrying, then he is without a will.

Hulababy · 29/03/2007 08:57

Unless he will was made in contemplation of the marriage, but by sounds of it this is not likely to be the case.

Judy1234 · 29/03/2007 09:05

H, that's what I think we were saying. He now has no will. He owns a house jointly with his wife so she gets that. Then anything over that goes under the intestacy rules. It looks like the terms of his own mother's will won't matter because she didn't leave anything in trust for his children just direct to him but wills should be checked. May be best not to ask him to make a new will as it might leave evertyhing to the new wife whereas if he does nothing the intestacy rules may mean the children get something.

Hulababy · 29/03/2007 09:09

Only read OP before posting, so not questioning anything already posted

Freckle · 29/03/2007 09:13

Xenia, I think you've missed some of this. I understood that the father in question is not LGJ's dh's father, but his stepfather. Both parties to the marriage had children from their first marriages.

The will I was referring to is his mother's will. It sounds as though dh's mum left her share in the house to her two children, but with a life interest to her husband. It really depends on the wording of the will. If she left her share of the house to her children, but with a proviso that her husband could live in the property until his death, then the house should not have been sold by him without sharing the proceeds of sale with dh and sister. However, if she left her share of the proceeds of sale to her children with a life interest in the money to her dh, then he could sell the house and use the money, but within certain constraints. In leaving her share of the property in this way, dh's mum effectively creates a trust, with her husband as the trustee whilst he remains in the house. Once the house is sold, then strictly speaking a second trustee should have been appointed. If he used the proceeds of sale to purchase the new property and the new property is held as joint tenants with his new wife, he may have misapplied the funds.

You really need to look at the wording of the will and find out what he did with the money and how the current property is held (this is very important as, if he dies, the property will go to his new wife and never form part of his estate if they hold it as joint tenants).

Then you need to get a specialist lawyer as this is going beyond my limited knowledge.

zippitippitoes · 29/03/2007 09:19

so divorce doesn't annul a will then?

Freckle · 29/03/2007 09:21

It annuls any bequests to the ex-spouse, but not the rest. On divorce, a spouse is considered to have died, so their share will form part of the estate to be divided between other beneficiaries.