Looking after your Children
28th May, 2020
Michael Brierley releases another element for making a Will - A question all parents should always be advised to consider when making their Will
In the flurry of activity leading up to the ‘big day’, reviewing Wills is not considered a priority and is often overlooked and left unresolved for some time. This can have unfortunate consequences.
‘It is important to appreciate that marriage or remarriage will automatically revoke any existing Will that you have in place.’
We recommend that you include on your to-do list – making a Will which is prepared either:
- ‘in contemplation’ of the marriage so it is not revoked by the subsequent marriage; or
- After the wedding, but this is understandably a risky approach.
If you die without a valid Will in place the intestacy rules apply, which set out who will benefit from your estate. This could lead to some undesirable results, particularly if it is your second marriage. Children from a previous marriage may not inherit from your estate as you would wish. This could lead to potentially unexpected and unwelcome claims against your estate. Tensions may arise between the competing and conflicting interests of those expecting to benefit, such as children from a previous marriage (or relationship) and the new spouse.
Preparing a Will can avoid leaving your family in this uncomfortable situation. For couples who have children from a previous marriage you could consider including a type of trust in your Will which balances the competing needs to provide for your current spouse (and perhaps young children from the new marriage), whilst also treating any children from a previous marriage fairly. This can be done through providing your new spouse with the ability or right to use and enjoy your assets during their lifetime, but on their death they can then be divided fairly between all of your children. This is just one way in which a Will is helpful in structuring your assets and protecting them when entering a new marriage and ensuring that your wealth passes according to your wishes.
Lasting Power of Attorney (‘LPA’)
You should also review any existing powers of attorney. A power of attorney allows a person or people you choose and trust to make decisions regarding your finances in the event that you are no longer able to do so. There two types being a:
- Property and Financial Affairs LPA; or
- Health and Welfare LPA.
LPA’s allow you to choose the people that you trust to make decisions about your ongoing health and welfare decisions, such as consenting to or refusing life-sustaining treatment on your behalf. You can also appoint trusted individuals to manage your financial affairs on your behalf. Quite often people will appoint their spouse as an attorney. Unlike Wills, powers of attorney are not revoked by divorce or remarriage and therefore they will need to be updated to remove any former spouse.
‘Who would want a former spouse or partner making personal decisions about matters such as life support or finances following your divorce?’
We would always hope that these issues outlined above would not apply to us but it is important not to leave these matters to chance. If you would like to discuss any of the matters raised then contact us.
This article was was produced for the Surrey Group of Life Magazines and be read along with the rest of the article on their website.
The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP.