Surviving spouse

Mojisola

Billy_Bob wrote: »

A husband and wife of 12 years reside together. The property is owned by the husband who has left the property to his children in his will.

There is no clause making provision for the wife to stay in the home. If he dies what is the wifes position? Can she be made "homeless"?

Was this a professionally made will? I'd be surprised that the husband wasn't warned that his will would probably be challenged if he went ahead with it. You can't give away your spouse's family home and leave her homeless.

There are some circumstances where the will might stand, eg, if the wife has another property of her own or he leaves her a substantial amount of cash in order to buy somewhere new to live. Even so, you would expect a period of grace to be built into the will before she was expected to leave the marital home.

The danger as the will stands now is that his children might lose out completely if the will is successfully challenged. She could gain ownership of the house and leave it in her will to other people.

If he altered his will so that she had a life interest in the property but the children then get possession of the property, at least they will inherit at some point.

If he hasn't taken legal advice, he should now and make a will that leaves his estate where he wants it to go.

dzug1

Billy_Bob wrote: »

Thank you everyone for your help. Unfortunately it is unlikely the will could be changed without being challenged.

The husband has stipulated an amount of money to his wife but not the home and she is not financially dependent.

which means that a challenge by the wife to the existing will is all the more difficult to sustain


Which is why I probed for more detail in my first reply. It's not as simple a question as you appeared to think

Billy_Bob

TBagpuss you have hit the nail on the head as husband has failing mental capacity. My concern is trying to protect his wishes and maybe prepare for how things could play out in the event of his death. A soliciter is being found and consulted this week. He does give a reasonable sum to his wife however it is not stipulated for her to remain in the home and she has funds and family of her own. My understanding i think is that if she was financially dependent on him then she could challenge his will however she does not have automatic legal right to as a spouse.

Billy_Bob

Oh dear it is a professionally made will but it does seem very flawed to me. The period of grace is what is missing :-(

Ms_Chocaholic

Is the wife the mother of the children? Surely any child would not allow their mother to be homeless.

Billy_Bob

No she is not the mother of the children inheriting. Her children are very interested in his will ;-)

dzug1

Billy_Bob wrote: »

He does give a reasonable sum to his wife however it is not stipulated for her to remain in the home and she has funds and family of her own. My understanding i think is that if she was financially dependent on him then she could challenge his will however she does not have automatic legal right to as a spouse.

She has the right to ask for reasonable provision from the estate. What constitutes reasonable provision is ultimately up to a court to decide. If she is financially independent reasonable provision will be less than if she was totally dependent on him.

Mojisola

dzug1 wrote: »

She has the right to ask for reasonable provision from the estate. What constitutes reasonable provision is ultimately up to a court to decide. If she is financially independent reasonable provision will be less than if she was totally dependent on him.

But the will (or a letter kept with the will) should set out the reasoning.

"Wife has the money from the home she owned before marrying me to move somewhere new/buy out my children" OR "Wife is being left cash to add to her own capital so that she is financially catered for" OR similar - solicitor will advise.