I read some time ago about a little boy, his parents divorced, and the father subsequently met a new partner and remarried. Later the father died, having made no provision in a valid Will for the boy.
It surprises many to learn that even if the young boy had been named in his father’s Will during his first marriage, that Will is automatically cancelled after remarrying (lawyers refer to this as revocation of the Will). In some instances, this scenario can result in zero inheritance for the child.
Why might this happen?
We are often nervous about making a Will. The irrational fear that doing so means that you will then promptly die. Approximately three out of every five UK adults do not have a Will. Even for those of us who do have a Will, it can be all too easy to lose sight of the need to regularly review and check that it considers up to date circumstances.
For example, when you move home it is likely that you will get a friendly reminder to consider making or updating your Will. Unfortunately remarrying doesn’t always lead to a friendly reminder so it is easy to see how this situation happened.
How to avoid accidentally disinheriting children – is there a solution?
Yes. The answer is regularly reviewing your Will to check that it still achieves the desired outcome and that it considers major life changes such as having children, getting married or divorced, buying a new home or inheriting family wealth.
This advice is too late for this scenario, but something can still be done even after the death. The adults can come together to agree a suitable financial arrangement. This is of course easier said than done – it is asking a lot to expect a second wife and first wife to collaborate constructively if they have had limited, or no contact previously or the relationship had been on bad terms.
Legislation does provide a further possible solution if needed.
The Inheritance Act – how the law can help
The Inheritance (Provision for Family & Dependants) Act 1975 allows dependants such as the young child to apply to the court to vary how the estate is divided if reasonable financial provision is not made. For a child under 18 a suitable person (usually an adult family member) acts as litigation friend to represent the child making the application and work with their legal team.
Inheritance Act claims are complicated with short time limits and specialist legal advice is always recommended.
For more information about the themes discussed in this article, please contact Will and inheritance dispute specialist Michael Henry.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.