Contested Probate is in the headlines, following the reading of Nelson Mandela’s will, highlighting problems that are becoming increasingly common with the rising number of ‘blended’ families following remarriage.
Commentators have pointed to the international leader’s decision to exclude his second wife Winnie from the will and the restrictions he placed on legacies to some of his surviving children.
Closer to home, the dilemma of getting it right for your family has also been featured in the long-running Archers radio serial, following the reading of Jack Wooley’s will where the bulk of his estate went to his much-reviled adopted daughter Hazel, with a further revelation by widow Peggy of her own plans to exclude well-heeled family members who she thinks can manage without her assets.
Mandela left much of his estate in trust and these can be a simple and effective solution to the problem of providing for a husband or wife from a previous marriage, whilst still making sure that children from an earlier relationship do not miss out. They can also be useful where there are concerns about a child inheriting a large amount of cash.
For a couple with children from previous relationships, part or all of their estate can be left in trust for the survivor, and then to their respective children following the survivor’s death. This means that the surviving partner can benefit from the assets – such as staying on in the home or receiving income from investments – but the children will be sure they receive their parent’s estate in due course.
Said wills and trusts expert Nicholas Manning, of Eastbourne based solicitors Stephen Rimmer LLP: “It’s clear that Nelson Mandela had given a lot of thought to the matter. He dealt with many of the gifts before he died, and put money into trust where he thought there might be problems.
“Although many headlines have pointed to Winnie Mandela being excluded, it’s not at all unusual for previous spouses to be excluded, as the divorce settlement should have taken that into account. The important thing is to think through what will happen to inheritance for children when there is a second marriage. It can be a bit like having to satisfy two different families, so taking time to discuss the options and making sure everyone knows your intentions – like Peggy Archer has done in the radio serial – can help avoid disputes after you die.”
If there’s a dispute, where a partner or family member was being maintained financially and feels they have not received what’s known as ‘reasonable provision’ in a will, they can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Any claims must be made within six months of the date of the grant of probate and ideally made before the estate has been distributed. If a couple were not married, then to make a claim the survivor would have to show they were living together throughout the previous two years.
This is not legal advice; it is intended to provide information of general interest about current legal issues.