Married couples - individual wills need a joint approach

16 August 2019

The dispute over the estates of Leigh-on-Sea pensioners John and Marjorie Scarle was widely reported in the media this week. Both had children from a previous marriage and the question of who inherited was dependent on which of the couple died first. 

In the absence of convincing evidence either way, the judge applied Section 184 of the Law of Property Act 1925 which says where one can’t determine who died first, the younger is deemed to have survived. This meant that, in particular, the couple’s jointly owned bungalow passed momentarily by survivorship to Marjorie (who was the younger) and therefore to Marjorie’s children under her will.

A more detailed commentary on the case can be found in the blog of my colleague Kate Salter, here.

As a lawyer who prepares wills, often for couples in a second marriage, the case brought a double dose of (sadly familiar) disappointment:

  • That family relationships were such that the matter couldn’t be settled by agreement:  legal costs reportedly of £170,000 were run up in a dispute over a property worth less than £300,000.
  • That John and Marjorie Scarle didn’t have wills dealing effectively with their assets, regardless of who died first: so much money could have been saved and so much family resentment contained.

Solicitors who prepare wills generally see a married couple together. Usually (but not always!) a married couple with children together want a will broadly along the lines of 'all goes to the survivor on the first death and to the children equally when we’ve both gone'. Often, the wills provide for 'catastrophe' beneficiaries in the event that (heaven forbid) the whole family dies together in a  plane or car  crash. The wills often provide that, in those very unlikely circumstances, half the joint estate passes to the husband’s side of the family and half to the wife’s, so both sides benefit equally regardless of which party to the marriage dies first.

With second marriages, one can’t always assume that both parties have the same agenda when it comes to wills. The monetary value brought to the marriage by each party might be wildly different, and coupled to a desire to preserve wealth for children of a first marriage, especially if much of that wealth stemmed from a former spouse.

Nevertheless, in my experience, couples in second-time-around relationships tend readily to find mutual understanding and acceptance of each other’s objectives. Where there is a huge disparity in wealth between the parties to a second marriage, the parties may, indeed, need to deal with their wills separately. The wealthier party might discuss with their solicitor a form of will that provides appropriately for the new spouse, while leaving/preserving assets to the children of the first marriage, without concern as to the contents of the will of  their  new, less wealthy, spouse.

In an ideal world, a couple in Mr and Mrs Scarle’s modest financial position would have sat down with their solicitor, agreed where they would like their joint estates to end up after they’d both died, and execute wills accordingly.

That solicitor would have been mindful of three basic truths:

  • Where jointly owned property is held as 'joint tenants', it passes automatically to the survivor of the joint owners regardless of what any will or the intestacy rules say;
  • You can’t know which of a couple will die first;
  • Unless the doctrine of 'mutual wills' applies (which is rare), a surviving partner can change their will at any time.

A  desired end result (perhaps) that ultimately both sets of children would share the joint estate equally would have involved wills  based on 'trust'.

Either:

  • All to the survivor on the first death and to the two sets of children 50:50 on the second death (having trust in each other not to change the will after the first death); or
     
  • Each party leaving their estate in a formal trust for the survivor for life, and the 'remainder' to the deceased’s children, remembering to sever the joint tenancy in the property so that the respective half shares pass under the will, and not automatically to the survivor.

It’s never possible to completely guarantee that family members won’t fall out over your estate after you’ve  gone. However, by making a will after careful consideration with your solicitor of all the options and their consequences, there’s a fair chance you can both achieve the desired result and minimise the risk of a family upset along with its associated legal costs.

About the author

Jim Sawer is a partner in our private client team. He has a broad private client practice and has advised families in the UK and overseas, including those with commercial and landed interests, for over 30 years.  Clients appreciate his ability to identify the true crux of a matter promptly and his results-orientated approach to resolving private client issues in the family context.

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