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Second Marriage: Writing A New Will

View profile for Caitriona Rafferty
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Second Marriage: Writing A New Will

With the modern-day family set up becoming more diverse, particularly with a rise in second marriages, disputes over estates are increasing.

The case of John and Marjorie Scarle is an ever so telling story of this. In August this year this case attracted significant media attention as Judge Philip Kramer put an end to a three year battle between stepsisters.

Mr and Mrs Scarle had both previously been married with children of their own before marrying each other. Mr and Mrs Scarle were joint tenants of their property and had numerous assets equating to £300,000. In their Wills the couple had left everything to each other absolutely, but upon second death Mr Scarle wished to leave everything to his daughter and Mrs Scarle wish to leave everything to her daughter. Trouble arose when Mr and Mrs Scarle were found dead in their bungalow in Leigh-On-Sea in 2016, both had died from hypothermia. Due to the circumstances, it was impossible to know who had died first and as a result which Will should be followed. If Mrs Scarle had died first then everything would have passed momentarily to Mr Scarle and then to her daughter on his death and vice versa for Mr Scarle. Judge Kramer relied on The Law of Property Act 1925 which creates a presumption that the eldest of the two died first. Therefore, as Mr Scarle was the eldest he was deemed to have died first meaning everything would have passed to Mrs Scarle making her daughter entitled to the whole estate.

Although we'd all like to believe incidences like Mr and Mrs Scarle's are rare and can be resolved outside of court, often they can't be. So how can you avoid disputes between step-children?

Consider severing the joint tenancy on the property as a first step. If you are joint tenants, by severing your tenancy you will each own a half share of the property as opposed to each owning half of the whole property (a subtle but distinct difference in legal terms!).

As a result, each set of children can be passed a half share of the property on death. The best way to do this is through a life interest trust in your will. This type of trust allows that, on your death, your half share of the property and any assets in your sole name can be held within the trust for the benefit of your spouse, and then on your spouse's death, these assets can be passed onto your own children. Your spouse can do the same in their Will with their half share of the property and any sole assets passing to their own children. A Will like this could have avoided the three-year court battle that arose from Mr and Mrs Scarle's estate, saving time, money and more anguish after a difficult period.

If you would like to know if a trust in your Will could help you and your family on your death, please feel free to contact our Private Client department on 01245 705181 or e-mail us on privateclient@gepp.co.uk for advice.

This is not legal advice; it is intended to provide information of general interest about current legal issues.