Will My Children Lose Out To His?

Posted on: 30 April 2008 by Gareth Hargreaves

Will Carla's children be left with nothing if she dies before her husband?

Carla Writes:

I have remarried. I have three adult children. My husband has two adult children who he has not spoken to for over 10 years.

His children are now coming back into his life which is nice for him but after two visits he is giving them large sums of money which is concerning me, although I appreciate it is his money as he earns more.

When I moved in with husband I bought half of the house worth now £340,000. We never did this legally he signed a paper acknowledging this fact and how much I put into the property.

We have never made wills because he says we will just leave everything to each other.

I work part time, he has a successful full time job. He is 65, I am 57.

My concerns :

1) If I die first my portion of the house will go to my husband - which is acceptable, allowing him to use how he likes in his lifetime.

2) Fear that when he dies my portion, if there is any left, will be left entirely to his children and mine will receive nothing. He also could, over his remaining years have been giving large sums of money away to his own children.

Is there anything that can be done to resolve this legally without me appearing uncaring and untrusting?

Andy Advises:

I'm so sorry to hear of your dilemma.  Of course, your husband has the right to give his children whatever he chooses to, as long as he can afford it and it is not to your detriment.   As you rightly say, that is his prerogative as a father, no matter what his relationship with his family has been in the past.

However, securing your future by legalising your financial situation is right, fair and proper and has absolutely nothing to do with being untrusting, unloving or uncaring.  Indeed it has everything to do with love, trust and care.  It is all about looking forward and behaving sensibly in order to avoid family arguments between your children and his after your deaths.   I suggest that you talk to your husband in that vein, telling him that it is for this reason and no other that you want to ensure that everything is put on a legal footing.   Even then, if he refuses to make a will, there is no reason why you shouldn’t.

If I were you, I would pay an urgent visit to the Citizens’ Advice Bureau.  You will find the telephone number of your nearest branch in your local telephone directory.   I can tell you now that a piece of paper signed by your husband saying you own half his house, not drawn up by a solicitor, and not witnessed, is worthless should it be challenged in a court of law.  You absolutely must ensure that you consult a solicitor together.  I am sure that a solicitor will insist that your name is added to the deeds of the property.  Only then will you legally own half each.

Your husband is totally wrong in his assumption that if you don't have wills, and in the event of the death of one partner, everything will automatically goes to the surviving partner.  Dying intestate, that is without wills, makes life incredibly difficult for those who are left behind, especially in a situation like yours where there is a second marriage and where there are children on both sides who may challenge ownership of property, money and household possessions.

You can, of course, do 'back to back' wills, leaving everything to one another if that is your wish.  But you need to make wills that will supersede your wills with very clear instructions on how you wish your estate to be divided.  

My suggestion is that you make a will leaving your husband your half of the house in the event that you die first and ensuring that he does the same.  You then add a rider, suggesting that after you are both dead, the proceeds of the house are split equally between all your children.  That way there can be no arguments or family rifts.   I would also suggest that each of you leaves other assets that you bought with you into the marriage to your respective children.    

You really should treat this matter with the utmost urgency.   Please let me know how you get on.

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