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Thy will be done

I am what many would describe as very comfortably off and have recently married for the second time. While I love my wife very much, she is younger than I am and is likely to survive me. Following my death, I would want my wife to be comfortable and continue to live in our house, which is in my sole name. However, I am conscious that should she inherit my estate and subsequently remarry, my estate could be diverted away from my two grown-up children, who I would like to be my ultimate beneficiaries. What steps could I take to protect my children’s inheritance while ensuring that my wife will be looked after?

Clearly, your will needs to be addressed but it is essential that this is done correctly as there are some potential pitfalls. To achieve your objectives, you could prepare a new will which spells out your wishes by bequeathing a life interest in all or part of your assets and estate to your wife, with the residual value subsequently passing to your children on her eventual death.

However, such a will could be contested. It is important to consider the position of your former wife, if she is still alive, as she may still have a potential claim on your estate. If she does, then she could contest the will if it makes no provision for her.

Furthermore, your current wife could contest the will if she feels that the provisions you have included for her are insufficient. Obviously, this could potentially result in your children inheriting less than you wished.

One alternative occasionally considered by astute people is to revoke all former wills, with the intention of having the estate distributed in accordance with the laws of intestacy. Revocation of your existing will involves nothing more than destroying it. If you die intestate, your wife will be entitled to your personal possessions and 125,000, with half the balance going to your children and the other half being held in a trust, with your wife being entitled to the right of enjoyment to income produced during her lifetime. The trust fund subsequently passes to your children following your wife’s eventual death.

However, apart from creating potential difficulties for your survivors and delays in distributing assets or income, believe it or not, distribution of an estate in accordance with the laws of intestacy can still be contested. For example, your wife could argue that such distribution does not provide for her sufficiently with the ultimate result that a court awards her further assets at the expense of your children.

Therefore, where the intestacy laws suit an individual’s objectives, it is appropriate to adopt a belt and braces approach by creating a new will which has provisions for distribution of the estate that mirror the intestacy laws exactly.

While this still does not guarantee that the will cannot be contested successfully, there will be a significant argument in support of the provisions, being they are the same as the law believes to be adequate in most circumstances.

Where a will contains a provision for someone to benefit from assets throughout their lifetime, with those assets subsequently passing to another party, a trust is created. Usually, the executors of your will would double as trustees of the trust. It is therefore essential that you think carefully about who your executors/trustees would be.

While you may feel that your spouse and children could adequately fulfil the position, it is important that you appreciate that a conflict of interests could ultimately arise. For this reason, it may be appropriate to appoint independent trustees.

A further piece of planning you could consider is to place capital or assets in trust now. At this stage in your life, you do not know what the future holds and it may not be appropriate to make outright gifts to trust or otherwise. However, settling funds to an interest-in-possession trust, where your children are the default/interest-in-possession beneficiaries and you and they are potential beneficiaries of capital, would allow you to access the capital during your lifetime while effectively taking the capital and any growth thereon out of your estate for testatory purposes. This could mitigate the risk of this part of your estate being considered in any challenge to your will.

However, in order to avoid the new pre-owned assets tax, you will need to make a declaration to the Inland Revenue at outset that you accept that the exercise will not be valid for mitigating inheritance tax.

Indeed, none of the strategies outlined above have the potential to mitigate inheritance tax, which may also be an important objective.

Furthermore, it is important to appreciate that all the steps you take in relation to trying to protect your estate once you are gone will have little bearing in the event of divorce. In such circumstances, the court will normally order a capital settlement, thereby depriving you and your children of that portion of your estate for ever.

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