Question about inheritance

Limercklass

Quick hypothetical question:

Spouse A and B are separated well over a decade but not legally.

Spouse A dies having not updated their will and so B is executor and is left everything.

They have a number of children together all of band adult age.

If it were to be contested would a judge agree that due to length of separation spousal rights to automatic inheritance had been lost?

Or has anybody any experience of having gone through this?

coylemj

You say that A 'had not updated their will', is that to say that there is a will and it leaves everything to B?

In which case the length of the separation is irrelevant, B gets everything according to the will and there is no other legal spouse to make a claim.

Limercklass

Yes the current will leaves all to B. So there would there be any point in contesting it from a child's perspective? Yes I know hypothetically the will should of been updated but surely a court would realise that this would not be A's actual final wishes if all was far from amicable

Peregrinus

If A didn't realise that her will did not reflect her wishes, a court is not going to step in and impose that view on her after here death. She had ten years to change her will and she never did; there's really no evidence there that it didn't reflect her wishes.

Any child of A's can challenge the will on the grounds that it doesn't make proper provision for the child, but if all the children are now independent adults you'd need some unusual facts for such a challenge to have any chance of success. And the fact that A and B were separated wouldn't really be a relevant consideration in such a challenge.

Mr. Incognito

No.

If you didnt update your will then tough.

Melendez

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James Forde

Peregrinus wrote: »

If A didn't realise that her will did not reflect her wishes, a court is not going to step in and impose that view on her after here death. She had ten years to change her will and she never did; there's really no evidence there that it didn't reflect her wishes.

Any child of A's can challenge the will on the grounds that it doesn't make proper provision for the child, but if all the children are now independent adults you'd need some unusual facts for such a challenge to have any chance of success. And the fact that A and B were separated wouldn't really be a relevant consideration in such a challenge.

Sorry to hijack the thread but what if A & B were married outside of the country, on separation it was ruled that the marriage was not recognized (shared assists were split 50/50).

Husband failed to update will. Would this have an impact on the reference to "wife" in the will.

Peregrinus

Melendez wrote: »

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The only question is whether Tom can be identified.

This case would be open-and-shut; the couple never divorced so they were still husband-and-wife. All of those references unambiguously identify the same person.

Even if they had divorced, there'd still be no doubt; the husband at the time the will was made, an ex-husband by the time of death, is still clearly and unambiguously identifiable. There's no implicit condition that he has to be still the testator's husband at the date of death; if she wanted that she would need to say so - "I leave everything to Tom, provided he is still married to me at the date of my death".

If the couple had divorced and then she had remarried a second husband, you could then argue there was an ambiguity in referring to "my husband". But in fact the question would never arise; the will would be revoked by the wife's second marriage, so it would never be admitted to probate or implemented.

Even where there is some genuine ambiguity in a will, the courts generally try to identify who the testator intended, rather than trying to avoid giving effect to what the testator undoubtedly meant. I recall a case in which the testator left a charitable bequest to "the Roman Catholic Bishop of Clifden". There is no Bishop of Clifden; Clifden is in the Archdiocese of Tuam. But there is a Bishop of Clifton, in England; the diocese of Clifton is centred on Bristol; the testator had lived in Bristol or had some other connection to the place, but had no connection with Clifden; the cash went to the English bishop and not to the Irish Archbishop.

Peregrinus

James Forde wrote: »

Sorry to hijack the thread but what if A & B were married outside of the country, on separation it was ruled that the marriage was not recognized (shared assists were split 50/50).

Husband failed to update will. Would this have an impact on the reference to "wife" in the will.

Same answer as above. Who did the husband actually have in mind when he made the will? I don't think there's any doubt. If, in the light of later events (the separation) or later discoveries (that the marriage was never valid to begin with) the husband wanted to reconsider leaving his property to his former/putative wife, he would need to amend or revoke his first will and make whatever new arrangement he thought fit. If he leaves it in place, then it will take effect when he dies.