Marriage

1837

Were you born before, during or after 1837? After? Good.

Marriage automatically cancels previous wills (except those made in anticipation of your pending marriage). This precept dates from an 1837 law.

It still applies - and it means what it says. When you say 'I do!,' your previous will and codicils become null and void.

However...

However, shortly before your upcoming marriage, you can make a will stating that you will soon marry and you want this will to remain valid. It helps to name your intended spouse in the will, and to tie the knot sooner rather than later.

If you do make such a will in contemplation of marriage and the marriage does not go ahead, or if you marry someone else, make a new will pronto and get rid of the now-erroneous will.

Spouses/Civil Partner Small Print

Spouses and civil partners can give assets to one another during their lifetimes or upon death and not pay IHT. There is no limit to the amount that can be transferred in this manner. However, the recipient must be domiciled in the UK.

The rule varies if one or both spouses/partners is not domiciled in the UK.

This spouse/civil partner exemption means that the recipient's nil rate band can be significantly increased - doubled, in fact.

However, if the full amount is transferred, it means that the person who died has not used any of their nil rate band - and this may not be tax-efficient.

The transfer occurs on the second death - and that death must have occurred on or after 9 October 2007.

Another date is important, although it is some 35 years distant: if the first spouse died before 1975, the full nil rate band may not be available to transfer.

The amount that is transferred is a percentage, not an actual monetary amount - and as it is applied on the second death, the difference can be important.

The tax man provides this hypothetical example on the HMRC website: a husband dies at a time when the nil rate band is £300,000. He has not made any lifetime gifts, so his threshold is at its maximum. His wife dies when the threshold is £312,000, but her estate has more than that amount due to her inheritance from her husband. However, her husband's threshold is now transferred to her - and that threshold is 100 per cent of the current nil rate band of £312,000.

Married, no will, now what?

If you are married and have no will, either because you never made one or because you revoked it - or it was nullified by remarriage - you die intestate.

If you want your spouse to inherit everything, you must make a will. By the rules of intestacy, spouses and civil partners will inherit everything only if the estate is small. If it is sizeable, the spouse automatically inherits only part of it - and the amount is rigidly fixed by law. The Intestacy section provides more detail.

"Common-Law Marriage"

Many people mistakenly believe that merely living together for a certain period of time confers legal rights akin to marriage. In fact, there are no squatter's rights in matters matrimonial.

However, if you have lived with someone for at least two years who then dies, you might be entitled to a share of the estate.

Common-law marriages were legally recognised hundreds of years ago. and Scotland still recognises "marriage by custom and repute." Nowadays, "civil partnerships" are recognised in law, but such relationships are sealed by official declarations and documents, not merely by the fact of sharing a home.

Common-law partners can NOT apply for probate. Civil partners can.

Re-marriage and stepchildren: disaster in the making?

Plenty of people remarry and live happily ever after with step-children in large blended families. And many don't. Adult children from an earlier marriage and a step-parent in the newer relationship can be a recipe for disaster. And evil does not always attach to the step-parent.

Case Studies: Stepmothers and Missteps

 

Case Study 1: Victory to the Step-Children

When Richard Sprackling willed his ‘farm’ to his wife, she took him at his word, and she took the farm too - complete with buildings, paddocks, lake, organic farm and other land and businesses.

One problem was that this arrangement left virtually nothing for his three adult children by his first wife - children who worked closely with him in family farming businesses.

Another difficulty was with the word 'farm.' The children argued in court that his father really meant to give their stepmother only the 'farmhouse' - which included paddocks and the income-producing fishing lake. They lost.

‘Farm’ versus ‘farmhouse’. Were the children merely playing with words or did they have a substantive point? What did Sprackling really mean and intend in his will - and would the court have enough evidence to make a determination?

The first hearing went in favour of Mrs Sprackling: farm meant farm, and everything that went with it.

The children appealed - and won, but the striking aspect of this case was something other than its outcome. It was the nature and abundance of the evidence, and the behaviour of some of the participants. Full story.

Case Study 2: Victory to the Step-Mother

Well known in merchant banking circles, Richard Cox-Johnson (1934-2005) was probably best known to the general public, if known at all, as the banker to Mick Jagger and the Rolling Stones. Actually, Jagger was one of Cox-Johnson's many wealthy clients.

A mathematics prodigy, he excelled at St Paul's School before earning a double First and graduating early from Hertford College, Oxford.

In 2005, Cox-Johnson made a new will, increasing the amount that would go to his wife. This new will divided his estate of approximately £10 million into four roughly equal shares - one each for his three sons, and the fourth for his second wife, their step-mother.

Cox-Johnson had made a will in 2001 and then composed a new one in 2005. This new will increased his wife's share of his estate, primarily because she had not inherited as much as she expected on the death of her mother.

Cox-Johnson's sons assured their father that the new financial arrangement was satisfactory to them, but after he died, they contested the will, claiming that he had lacked testamentary capacity. They wanted the 2001 will reinstated.

Cox-Johnson had suffered from heart trouble and Parkinson's disease but was apparently alert mentally. According to newspaper reports, emails between the brothers indicated that they planned to challenge the will at the same time they were telling their father that they were satisfied with his plans. They also reportedly filmed their father secretly at a luncheon party intending to use the footage to demonstrate his confused mental state.

The secret movie, along with evidence that the brothers had intended all along to challenge the will, cast them in unfavourable light. After six days, the sons in effect threw in the towel by withdrawing their legal claim.