Making a Will for a second marriage when you have children from a first

Many people who get married for a second time have children from a previous relationship meaning keeping everyone happy in their Will can be a tricky exercise.

But the importance of getting it right now to avoid the potential of a costly and stressful family dispute later, cannot be over-emphasised - as the highly publicised case of John and Ann Scarle illustrates.

No Wills - bitter wrangle

The elderly couple, who had not made Wills, died from hypothermia in October 2016 but were not found for a week.

This meant that establishing the order in which they died became critical to determining which of their daughters from previous relationships inherited the couple's jointly owned £280,000 bungalow in Essex.

With experts unable to determine the exact date of the couple's death, Judge Philip Kramer relied on a 95-year-old law stating that when it's impossible to establish who died first, the younger person - in this case Ann - should be presumed to have outlived the elder.

As a result, Mrs Scarles' daughter inherited the bungalow and all Mr Scarles' daughter was left with was a £150,000 legal bill.

Balancing provision for new spouse and children from a previous relationship

The first thing to remember when you marry again is that any previous Will is automatically cancelled, leaving you in a potentially vulnerable position.

In effect, until you make a new Will, you don't have a valid Will, which means that if you die, the laws of intestacy decide how your estate is divided and not according to the wishes expressed in your pre-marriage Will.

This has particular implications if you have children.

Making a new Will

Great - you're making a new Will but now you need to think about how to word it to ensure it provides for a surviving spouse whilst protecting any inheritance for children from a previous relationship.

This may mean exploring the possibility of creating a trust in your Will, for instance a Life Interest or Property Trust to avoid upset and guarantee provision for your nearest and dearest.

After your death, this type of structure allows your spouse to benefit from the trust assets during their lifetime but when they themselves die, the assets can then be distributed to your children.

Having a correctly drafted Will enables you to make sure that your spouse is provided for but that the children from your first marriage don't see your wealth passing to the children of your spouse when they die.

For more advice about making or updating your Will contact any member of Wards Solicitor's specialist Wills, Probate and Mental Capacity team. For specific advice about trusts, please contact Wards Solicitors' specialist trust lawyer, Mary Harty.