Many people assume that once they get their final order of divorce their ex-spouse has no further claims against them or their estate. Family lawyers and Will solicitors say that is not correct.
In this article, our lawyers look at when an ex-wife can make a claim against an estate and what you can do about it to protect your estate and your beneficiaries.
For expert family law and Will advice call our team or complete our online enquiry form.
Financial claims after a separation or divorce
When you separate or divorce your ex-partner their financial claims remain intact until you reach an enforceable agreement or the court makes a financial court order.
Even if you reach an agreement or the court makes a financial court order your ex-spouse may still retain all or some of their financial claims. That is why it is essential to use a family law solicitor to help you negotiate a financial settlement or to draw up your financial court order. It is equally important that your solicitor explains what the wording of the order means.
The only way you can achieve finality with no risk of further financial claims is if the court makes a clean break financial court order.
What is a clean break financial order?
A clean break financial court order can be made by agreement ( you and your ex-spouse ask a family judge to convert your agreement into a binding court order) or after a contested court hearing. Clean break orders can be confusing as there are 2 types:
Immediate – as soon as the court order is made your ex-spouse cannot make any further claims or they cannot do so once the order is implemented. For example, an order will be implemented after the sale of a family home, the agreed division of equity, and the pronouncement of your final order of divorce
Deferred – the clean break comes into effect when an event occurs. For example, if you are ordered to pay time-limited spousal maintenance the clean break may come into force when the spousal maintenance payments end. A deferred clean break can be confusing as the court order may allow the person receiving the spousal maintenance to apply to the court to extend the length of the spousal maintenance order or the person receiving the spousal maintenance may ask the court to make a lump sum payment or pension sharing order in their favour instead of them continuing to receive ongoing spousal maintenance. Some court orders do not allow the person receiving spousal maintenance to apply to court to extend the maintenance term
As clean breaks are complicated it is best to take legal advice on your financial settlement to see if you are likely to be able to achieve one and whether it is in your interests to do so. For example, if your ex-wife is in a new relationship and you think she will remarry you may not want to give your ex-wife more money to buy off her spousal maintenance claims. Why? Spousal maintenance automatically stops on re-marriage and it cannot be revived if the ex-wife’s second marriage breaks down. However, if an ex-wife cohabits rather than remarries you will only achieve a clean break if the spousal maintenance order provides for this.
Your priorities and goals
It is important that your family law solicitor takes their time to understand your priorities and goals. Some people are adamant that they want a clean break. There may be reasons for this, such as a bad experience in a first divorce, the future anticipated sale of a business, or wanting to protect your children from your ex-wife making a claim against your estate. Other people may be more sanguine about negotiating a clean break order. For example, if you do not have children and are not worried if your ex-wife tries to make a claim against your estate as you are leaving most of your money and property to charity and know that your executors can fight the claims in the unlikely event that your ex-wife brings a claim against your estate.
Can your ex-wife make a claim against your estate?
Whether your ex-wife can make a claim against your estate will depend on whether you have a financial court order, its precise terms, and whether your ex-wife has remarried.
If you are concerned that your ex-wife may have a claim against your estate under the Inheritance Act then talk to a Will solicitor. She will still have a potential claim even if you make a Will and cut her out. That is because under the Inheritance (Provision for Family and Dependents) Act 1975 anyone who falls into one of these categories of people has a potential claim against your estate:
A wife, husband, or civil partner
A former wife, husband, or civil partner (provided they have not remarried)
A child or someone treated as a child by the deceased
Someone who was living with the deceased for the 2 years before the deceased’s death
Anyone who immediately before the deceased’s death was financially dependent on them
A private client solicitor can provide you with estate planning advice and draw up a Will that reduces the risk of your ex-wife bringing a 1975 Act claim. They can also work with a specialist family law solicitor so you can explore whether it is worth asking the court to make your existing financial court order into a clean break order. This may be possible if, for example, the court left spousal maintenance open-ended because your ex-wife might need spousal maintenance in the future but she has been in a long-term cohabiting relationship so you think the time is right to secure a clean break.
At Evolve Family Law our family law solicitors work closely with our private client and Will lawyers and recommend that when you separate you think about making a Will or changing the terms of your existing Will.
For expert family law and Will advice call our team or complete our online enquiry form.
Our private client and Will solicitors are asked the question ‘Can a separated spouse inherit?’ The quick answer is yes or maybe. That’s why if you are thinking about a separation or divorce you need to talk to a Will and estate planning solicitor as well as to a family lawyer.
In this article, our Will solicitors explain why you need a Will or a new Will if you are going through a family separation. Our specialist lawyers can help you with all your private client needs, including writing a Will for you or checking if your existing Will needs amending, because of your new family circumstances.
For expert Will and estate planning advice call our team or complete our online enquiry form.
Who inherits if you are separated
If you are separated from your husband, wife, or civil partner then you are still in a legal relationship with them until the relationship is dissolved by your securing a final order of divorce or the dissolution of your civil partnership.
A gift in a Will to a separated spouse or civil partner is valid despite your separation.
If you have not made a Will your separated husband, wife, or civil partner is one of your next of kin and they will be entitled to a share of your estate under the intestacy rules.
The intestacy rules set out who inherits your estate where there is no Will. The rules say:
If there are surviving children or grandchildren or great-grandchildren and the estate has a value over £322,000, the spouse or civil partner will inherit:
All the personal property and belongings of the deceased and
The first £322,000 of the estate and
Half of the remaining estate
2.If there are no surviving children, grandchildren or great-grandchildren, the spouse or civil partner will inherit:
All the personal property and belongings of the deceased and
The rest of the estate
Whether there is a Will or if the intestacy rules decide who gets an estate, some people can challenge the provisions in a Will or the intestacy rules distribution. They can do this if they do not think that the Will or the intestacy rules make reasonable financial provision for them by making a claim against the estate.
Joint property and separated spouses
Many married couples jointly own their family home. If a house is owned as joint tenants the surviving partner automatically inherits the deceased’s share of the house. That is the case even if the deceased was separated from their husband or wife or even if the deceased made a Will leaving their estate to their children or charity.
If you do not want your husband or wife to inherit under the joint tenancy survivorship rule then your family law solicitor can check to see if you own your family home as joint tenants. If you do own the property as joint tenants then you can sever the joint tenancy. That means the property continues to be jointly owned but you own it with your spouse as tenants in common. If you predecease your spouse your share of the property will pass under the terms of your Will. It is important to check the terms of any existing Will and to change it if necessary. That’s because most married couples have Wills that leave most of their estate to their spouse so severing the joint tenancy will only work if you also change your Will.
If you do not have a Will then intestacy rules will apply to your estate so it is important to get a Will solicitor to prepare a Will for you if you do decide to sever the joint tenancy.
One point to note is that if your separated spouse predeceases you after you sever the joint tenancy then you will not automatically inherit their share of the property under the survivorship rules. Instead, your estranged spouse’s share of the property will pass under their Will or intestacy rules.
Making a Will if you are separated
If you are separated from your husband, wife, or civil partner it is best to change your Will straight away rather than wait until after your divorce comes through. That’s the case even if your separation is amicable. For example, you may want to change your Will to leave your estate in trust for your young children. If the separation is amicable, you could appoint your estranged wife as one of the trustees of your estate. If your estate is left to your wife directly and she remarries then her second husband could inherit her estate (including the money and assets she inherited from you) and your children could lose out.
A Will solicitor can help you write a Will that reflects your new family circumstances and reduces the risk of a person making a claim against your estate. For example, they may recommend that your Will includes a discretionary trust. There are lots of options and estate planning choices that a specialist Will solicitor can talk you through.
For expert Will and estate planning advice complete our online enquiry form.
Most of us like to think that we have protected our loved ones after our death. That may be by taking out life insurance, paying into a pension that includes a spouse or partner pension if you pass away before your husband or wife , or simply making a Will. However, none of these actions may prevent someone contesting your Will after your death. In this article, private client and Will solicitor, Chris Strogen, looks at how to best prevent someone from contesting a Will.
Can you contest a Will?
Most people think that if they have made a Will setting out where they want their property and money (referred to as their estate) to go to, that their express instructions in their Will can't be ignored or overridden. However, a Will can be challenged. There are two potential ways a Will can be contested:
An allegation that the Will isn’t valid.
An allegation that the Will doesn’t make reasonable financial provision for a person who has a right to make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975. This Act applies to estates in England and Wales.
Stopping your Will being contested on grounds of validity
If you get your Will prepared by a specialist Will solicitor it is less likely to face a successful challenge that the Will isn’t valid.
A Will can be said to be invalid for a variety of reasons, such as:
The Will wasn’t witnessed properly in accordance with current witnessing requirements.
The Will maker was coerced or unduly influenced into making the Will.
The Will maker lacked testamentary capacity to make the Will. For example, because of age or dementia or another health condition affecting their ability to make decisions or because they were receiving hospital or hospice care and on strong medication when they decided to make their last Will.
It is part of the job of a Will solicitor to try to ensure that a Will is valid. They will therefore try to minimise the risk of a Will being contested on the grounds of validity by taking precautions, such as:
Giving clear advice on how the Will needs to be signed and witnessed, and if you are planning to get the Will witnessed remotely because of COVID-19, clearly explaining if you can do that and how to comply with remote Will witnessing regulations.
Ensuring that the Will maker’s instructions are taken, rather than relying purely on a family member or friend to pass on the Will maker’s instructions as to what should be included in the Will.
If the Will maker wants to make a completely different Will to their previous Will or a Will that is perhaps unusual (for example, leaving their entire estate to someone they have just met when the Will maker has a close and supportive family ) then explaining the potential for the Will to be challenged and helping the Will maker write a letter to accompany the Will to explain the decision behind the new Will. Alternatively, an explanation can be included in a Will, for example, that provision hasn’t been made for a spouse because of a separation. It is important that family law advice is also taken as a spouse can still make a claim unless there is a clean break financial court order in place.
Checking to see if there any health or other issues that might enable someone to question whether the Will maker lacked testamentary capacity when they signed their Will. If there are any question marks it is sensible to be cautious and obtain a medical certificate to say that the Will maker has capacity. Although someone can challenge testamentary capacity even where there is a certificate, the claim is far less likely to be successful if the point was addressed at the time that the Will was made.
Reducing the risk your Will can be challenged because it doesn’t leave reasonable financial provision
The best way that you can reduce the risk of your Will being challenged because it doesn’t leave reasonable financial provision to a potential claimant is to be totally honest with your Will solicitor.
Sometimes people are embarrassed to say that they have a child from a previous relationship because of the child’s age and other family circumstances or don’t mention a partner as they don’t want family members to know about their partner. Whatever you tell your Will solicitor is confidential and they can't give detailed advice without all the necessary information about your family and potential claimants. In addition, your Will is private and the contents of your Will don’t have to be disclosed to your family. However, explaining your Will to your family may help them understand why it is fair and, in addition, after death a Will becomes a public record.
A Will solicitor can advise on potential reasonable financial provision claims that you may not be aware could be made. For example, your estate may be left to your second spouse but your child from your first marriage may have a potential claim. Alternatively, you may leave all your estate to your children but a claim is then made by a former husband or wife against the estate as they were in receipt of spousal maintenance payments at the date of your death.
There are lots of things that a Will solicitor can advise on to reduce the risk of claims, including the:
Creation of a trust during your lifetime.
Creating a discretionary trust in your Will.
Preparing a careful letter of wishes to accompany your Will so your trustees can exercise their discretion and hopefully avoid a dependency claim.
Taking family law advice, for example, capitalising spousal maintenance or taking out life insurance to cover any potential spousal maintenance claim against the estate.
In addition to advising you on potential claims against the estate your Will solicitor can also advise on IHT planning so your Will and estate planning is as inheritance tax efficient as possible, taking into account your family and personal circumstances.
We are Cheshire Will Solicitors
For legal help with your Will or estate planning call us or complete our online enquiry form.
Evolve Family Law offices are in Holmes Chapel, Cheshire and Whitefield, North Manchester but we also offer remote meetings by telephone appointment or video call.
Our private client solicitors will tell you that enquiries are rising about whether Wills can be challenged by family members and loved ones. In this blog we look at the grounds for contesting a Will.
Can I contest a Will?
When a family member passes away it is a difficult time. Your grief and distress can be increased if you don’t think that your loved one’s Will is correct. If that is the case, then it is best to take legal advice on the Will and whether you have the grounds to contest it. Our contesting a Will solicitors provide discreet, sensitive advice about your options.
What are the grounds for contesting a Will?
You may be able to contest a Will if:
The Will maker lacked testamentary capacity or
The Will was not executed properly or
The Will maker was unduly influenced to make the Will or
The Will was fraudulent or forged.
In addition, if you’ve been left out of a Will or you haven’t been left as much as you need and you were dependant on the deceased, you may be able to bring a claim against the estate. This is different to challenging a Will on the above grounds.
Contesting a Will because of lack of testamentary capacity
If the Will maker signed their Will at a time when they had lost their mental capacity to manage their own affairs (referred to as a lack of testamentary capacity by contesting a Will solicitors) then their Will isn’t valid. That’s because you must have testamentary capacity in order to make or change your Will.
Loss of mental or testamentary capacity means that the Will maker didn’t have the mental ability to understand what they were doing when they signed their Will and the impact that their actions would have on their estate. If the person executing the Will doesn’t have mental capacity at the time that their Will is executed then, if the Will is successfully challenged, the estate will pass and be administered in accordance with their most recent valid Will instead. If the deceased hadn’t made an earlier Will then their estate will be divided under the rules of intestacy. It is therefore important to understand what would happen to the deceased’s estate if a Will is challenged as intestacy rules can produce unexpected results.
Contesting a Will because the Will wasn’t executed properly
A Will may not have been executed properly as it wasn’t signed by the Will maker or their signature wasn’t properly witnessed by two witnesses. As a result of the Covid-19 pandemic the government has introduced temporary remote witnessing of Wills if certain criteria are met. That has raised additional concerns if the Will maker is vulnerable. If the Will wasn’t executed properly then the Will is invalid and the deceased’s estate will pass in accordance with any earlier validly executed Will or, if there is no earlier valid Will, under intestacy rules.
Contesting the Will because the Will maker was unduly influenced to make the Will
If the Will maker was under undue influence or was pressured or coerced into making a Will then the Will may be invalid. There may be a red flag over whether there was undue influence if the deceased was elderly or vulnerable and left their estate to someone they only met shortly prior to their death and the deceased had always said that they would leave their estate to family members or friends. Any challenge to a Will on the basis of undue influence has to carefully look at what evidence there is of undue influence, other than suspicion on the family member’s part, because to contest a Will on the basis of undue influence you need to be able to say that the deceased would not have made the legacy in the Will without being subject to coercion or undue influence.
Contesting a Will because the Will was fraudulent or forged
If a Will is fraudulent or forged then it is invalid. Examples include forging the Will maker’s signature to make sure the Will is executed or destroying a Will so that an earlier Will is thought to be the valid Will or because under intestacy rules the fraudulent person will get the lion’s share of the estate.
Should I contest a Will?
If you want to contest a Will on one of the above grounds because you have concerns about a Will then it is best to take legal advice. That is because challenging a Will can create tensions between family members or bad feeling. A contesting a Will solicitor can assess the grounds for challenging the Will, the evidence and your options.
How do you contest a Will?
If you want to contest a Will it is important to take action and obtain legal advice as soon as you are able to do so. That’s because there are time limits to contest a Will. For example, if you are bringing a claim as a dependant of the deceased the time limit is six months from the issue of the grant of probate.
If you decide to contest a Will then you can make a claim, referred to as a ‘caveat’, to the Probate Registry office. The claim means that the probate won't be completed and therefore the estate won't be distributed without your being notified and able to pursue the claim. The caveat lasts for six months but can be renewed if an extension is justifiable.
If during the period of the caveat you are not able to resolve the Will dispute by agreement then you have the option of starting court proceedings to contest the Will. When determining the application the court will weigh up all the evidence and that’s why it is best to take specialist legal advice before starting the litigation. That way you can make informed choices on whether pursuing the court case is in your best interests.
Our Private Client and Contesting a Will Solicitors
Deciding whether or not to challenge a Will isn’t an easy decision to make. For sensitive, pragmatic help contesting a Will call Chris Strogen at Evolve Family Law or complete our online enquiry form.
Our offices in Holmes Chapel, Cheshire and Whitefield, Manchester are open for face to face meetings, however an appointment is required. We also offer remote meetings by appointment by video call or telephone for those who prefer not to travel.