Ask the Experts

Inheritance

Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My Father married his girlfriend whilst he was on his deathbed (this was her idea). He has since past away. The marriage was never consummated as he was too ill (although they had lived together prior to his illness). He never made a will and now she has inherited everything including the house which we are living still living in and we believe she will sell it and move on. Is the marriage valid and do we have any rights to prevent losing our home in law ?
A.	The marriage is valid I am afraid and the will is also valid unless you can prove that he was in fact mentally unable to make decisions of this nature. Also there is a possibility of conntesting the will under the Inheritance Act but you have to show you were in some way maintained by him. I suggest you get independent legal advice.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have shared residence of my children.My ex wife has her needs met with a council house and is on benefits.It is now 2 1/2 years since she left and she was only in the new house for 4 months and has not contributed to anything since she left.I have struggled to pay mortgage payments.Is she entitled to the increase in equity and would her looking after the children in her council house be classed as a contribution to the family home.
A.	The facts are in your favour. There has been no financial contribution to the property, hers and the children's housing needs are met by virtue of the shared residence and her council housing. You would have a very good defence against a claim for any of the equity in my view.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My grandad died a few days ago, and he was seperated from his wife for more than 15 years. They had no contact, no legal seperation was ever done, they just split up. Now that he has passed away, I was wondering if she is still his next of kin and entitle to anything he has left behind, even though they have been seperated for so long.
A.	Emma Unless he did a will stating that she was not going to receive anything, then she will be the sole inheritor of his estate subject to the rules of intestacy which provide for certain financial limits. If you are married and you do not have a Will the amount your spouse can inherit is limited by the Government rules below:- If the estate is worth less than £125,000 your spouse will receive everything. If it is worth more and there are no children or relatives, your spouse will receive everything and inheritance tax will be payable on everything over £242,000. If there are children then your spouse will receive £125,000 plus personal chattels and the rest of the estate is divided into two. The children receive one half and the other half is held on trust. The spouse then receives income arising from that trust over his or her lifetime. If there are no children, then the spouse is entitled to the first £200,000, plus personal chattels and the rest of the estate is divided into two. The parents (or brothers and sisters) receive one half and the other half is held on trust. The spouse then receives income arising from that trust over his or her lifetime. If there is no spouse and no living relatives then the estate will automatically go to the Crown.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am 66 years of age and have been divorced since 1975. I have not re-married or been supported financially by anyone since. My ex-husband has paid me a reduced amount of maintenance of £1020 per annum ever since my children left home (ie since 1980). He re-married in 1984. He is now 68 and is not in good health and I want to know whether, in the event of his death, I can make a claim under the Inheritance Act for financial provision out of his estate. I manage on a very low income and have to work part-time from home to make ends meet. (My total income is less than £10,000 per year) and I would really miss the £1020 maintenanceI receive at present. My ex-husband and his wife are very comfortably off.
A.	If you have an order in force it will state that your IA claims have been dismissed. If not then they have not and you will still be able to claim against the estate as you have been continually maintained by him. I would take the order to a Solicitors to check.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I am in the very early stages of separating from my husband. 18months ago I inherited and sold my family home, the proceeds I plan to put in to 2 properties which are at present being built. The idea is for me to rent these out to provide an income. Will my husband automatically be entitled to half the inhetitance? He has received a small cash sum that was stipulated in the will. I have exchanged contracts on the properties but completion is not due for another year.
A.	You inheritance cannot be touched by him but it can be taken into account as far as other assets are concerned such as equity in a house whereby you may get a reduced amount as your need for capital has reduced.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	My divorce is at the Decree Nisi stage and my husband is to receive an inheritance within the next few months. Should this be included in his assets when calculating the financial settlement? I would be most grateful for your assistance.
A.	The quick answer to this is yes as it is a potential asset that has to be disclosed and is capable of being taken into account in any proceedings.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I have a friend who has been married ofr 25 years. Her Husband had an affair and moved in with this woman. She got a divorce about 9 months ago and then in Aug her ex married the other woman. She has 3 boys, two at university and one who is 14. Right now she is making a new will leaving everything to her boys. Her ex refuses to make a new will. If he dies who would inherit, my friend or his new wife with whom he had the affair. The original will leaves everything to my friend. If her ex does make a new will does my friend have any claim on it because she was married for 25 years.
A.	If they are divorced then both wills become void and the only way she can claim from him would be under the Inheritance Act if she can prove that he has maintained her, which from your question it sounds as he has. Again the boys would have to apply under the inheritance act. If no financial orders have been made within the divorce she should apply for it to be sorted out. If she requires live advice i suggest she use our TeleLawyer service.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	I have recently been to a solicitor to draw up a formal Will. The Will includes transfer of my house to my current partner (who has lived with me in the house for 2 years). The house is in my sole name. Additionally, I have requested insurance monies and some other funds to be passed to my 11 year old daughter but placed in Trust and released to her at the age of majority. In the meantime my appointed Executor would release regular payments for her maintenance. However, to my astonishment I have been advised that, notwithstanding my wishes in the Will, my ex-wife can still make valid claim against the estate for her own needs even beyond my daughter's 18th birthday/end of higher education. Is this true and if so what is the point of making a Will? Thank you
A.	Without seeing the order which was made in the divorce I cannot say for definite whether your ex-wife has a potential claim. If there is no order and no formal settlement then it is likely she will be able to. It is on the basis that if she has been maintained by you in life she could entitled to be maintained by your Estate in death. You do need specialist advice on this point. Go and see the solicitor who acted on the divorce with the Will to have it explained.
Answered by: Simone Katzenberg, Solicitor
Q.	My husband has just told me he wants a divorce. I do not want this, although I am slowly becoming resigned to the fact. I am in no hurry to get the formal paperwork completed, although in order that we can get on with our lives we both need to know where we stand financially. I am of a mind to wait 2 years before giving my consent. The question is that my mother is 84, and though currently in good health it has to be faced that she may not last the 2 years. I am an only child and stand to inherit all her estate, although this is not considerable. My question is will I have to give part of this to my husband if she dies before the divorce. Other than divorcing as quickly as possible, how can I or she protect any future inheritance I may have?
A.	If you wait the two years and your mother dies during that period, any inheritance that you receive will be taken into account. What that means is that it can and probably will alter the final outcome. Without knowing anything about you, the finances, your ages, length of marriage etc its not possible to predict the outcome. However bear in mind that even if you start divorce proceedings now, it tends to take anything from say 9 months to 18 months to get everything all sorted out. If you start in two years time , add that time on. However it is a big decision and one that should not be rushed into. If you aren't ready to divorce yet, then don't. Its not either now or in two years. You could get it going in six months time if you want. Its your divorce and in a way you can set the pace and timetable. For more specific advice please feel free to use our LegalAssist service to obtain a free consultation with a local Solicitor
Answered by: Tracy McCormack, Solicitor
Q.	Five years ago my ex husband left me to live with my best friend, I stayed in the matrimonial home for a year afterwards and managed to keep up the payments but realised I could not do this long term so after discussions I moved into rented accommodation and my ex moved back in paying all bills from then on, our solicitors reached an agreement whereby I accepted £1000 as a settlement which was never agreed before a court, no finances ever have been. I divorced him 3 years ago as I had met someone else and wanted to re-marry. He has since re-married and still lives in the house. We have a fairly good relationship and he pays maintenance for our 2 children. Last November he asked me to take my name off the mortgage which was what we had previously agreed and I signed the mortgage release form on condition he make provisions for our 2 children in his will, which he assured me he would. I received a letter from his solicitor saying he had been in to make a will and wished for myself to have an executed copy when it was done. I have received this today and sure enough he has done as promised and in the event of his death he wishes for the house to be sold and the proceeds divided between our 2 girls, my question is what happens if he moves house, will this apply to any property he owns? There is about £15k equity in this property, I understand from his solicitor that he cannot alter his will with him at a later date as I have specifically stated to his solicitor that I am only transferring my name from the deeds on condition the house is left to the children. We put about £18k into this house when we bought it 8yrs ago. We were together 13yrs and married for 8. I do not have the money to go through solicitors put just want to make sure that my children’s future is secure. I am sure he only has out children’s best interests at heart as well and would not go behind my back on this but is there anything else I can to make things more watertight. I have to get this deed of transfer witnessed would it be worth also getting a letter witnessed that this was the only reason I would transfer the property. I do not want to cause any unpleasantness as things run very smoothly most of the time and I don't want the kids to get upset over money issues. Any advice would be greatly appreciated.
A.	It is difficult to give you accurate advice due to the limited information provided. However as there has never been any court order there is no binding agreement between you and your ex. On the face of it there is nothing to stop your ex changing his will in the future. The fact that your ex's current solicitor states he will not act for him to change his will, does nothing to protect the position of your daughters. It would be easy for your ex to change his will via another solicitor or in fact to do it himself. If your ex moves, and his will specifically states the address of his current property, then he would need to make another will. I am afraid that getting a letter witnessed at the time you sign the transfer would provide you with no protection at all. If you wish to try protect your daughters further, I am afraid, that you would need to consider taking other measures that would require the intervention of a solicitor.
Answered by: Mark Keenan, Editor, Divorce-Online
Q.	I was married for 2 1/4 yrs, and the decree absoloute made on 14/7/99. My mother-in-law sadly died before the divorce was finalised - am I legally entitled to any of her estate?
A.	Under the Inheritance Act you can make a claim if you can show that there was a level of reliance on her for income or capital. If you have not finalised the financial aspect of your divorce, any inheritance received by your husband or to be received should be taken into account for the overall settlement.
Answered by: Katie Went, Solicitor, Bower & Bailey
Q.	As my wife has left me for another man and is living an aduterous lifestyle is she entitled to half of the estate?. If so does she also have to pay for half the debts? incured during the marriage Thanks Bob Dean
A.	In recent years the Courts have moved away from penalising those who are the Respondent's in a fault based divorce. Years ago if you were the person who had committed adultery or had acted unreasonable then this could affect a financial settlement. Nowadays the Courts have moved away from this and look at the financial side of the case independently from the actual divorce, except in exceptional circumstances. When considering finances the Court apply the Section 25 factors. This includes looking at the assets of the marriage, then considering many other factors, such as the length of the marriage, age of the parties, if there are any children, etc. It is difficult to advise you as to whether your wife can claim on your estate. If you mean your estate when you die then no she cannot if you write a Will that leaves her nothing. If you write no Will then your wife will benefit under the intestacy rules. If you mean the assets of the marriage then I would need more information before I could advise. If there are no assets of the marriage and the debts are in your name then no Court can order your wife to be responsible for them. If there are joint debts and joint assets then it is likely that they will be offset against each other.
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