News and Events

Second Marriages, step families and Wills

View profile for Alison Elwess
  • Posted
  • Author

The importance of making a will in a step family or a second marriage.

It is important for everyone to make a Will, if you want to make sure your family is provided for in the way you would wish after your death.  However, as a recent case in the High Court has demonstrated, it is even more important to do so following a second marriage where you may have a spouse, your own children, and also step-children to consider. 
In the case in question, Mr and Mrs Scarle, of Leigh-on-Sea, each had a daughter from their previous marriages. They owned their home jointly, and held a joint bank account. Sadly, in October 2016, Mr and Mrs Scarle were found dead from hypothermia in their bungalow and it was unclear which of them had died first. 
In situations such as these, rare though they are in light of modern forensic techniques, there is a presumption, known as the Commorientes Rule, that the elder (in this instance, Mr Scarle) died first, unless it can be proved on the balance of probabilities that this was not the case. The order of deaths was critical in this case, as it would determine whether the estate passed under the terms of Mrs Scarle's will to her daughter Deborah Cutler, or under the rules of intestacy to Mr Scarle's daughter Anna Winter. 
In the end, the Court ruled that there was insufficient evidence to justify departing from the presumption of the Commorientes Rule, meaning that the jointly owned property and bank account passed to Mrs Scarle as the surviving owner, and then to her daughter.
Mr Scarle's daughter, having resisted all attempts to settle the case (including rejecting an offer of an equal split of the assets in question), was ordered to pay legal costs amounting to £179,000. 
This highlights the importance of anyone, but perhaps particularly a couple with step-children, taking legal advice, planning what should happen to their assets after their deaths, and having appropriately drafted wills in place to put that planning into effect. 
Although it rarely happens, tragic circumstances do arise where a couple (and even their children) may die together in circumstances where it is not possible to establish who survived the other, such as in a car accident for example. By considering such 'worst-case' scenarios with clients, and what should happen should such a catastrophic event arise, we can help you plan for the future and do as much as possible to avoid conflict arising between family members after your death. 
For advice in relation to your will, please contact Helen Newson, Alison Short or Alison Elwess at Andrew & Co's Lincoln office on 01522 512123, or Andrea Bingham at our Newark office on 01636 673743.
Find out more about our Wills and Estate Planning services