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We answer your financial queries Gregor Mitchell, Partner and Head of Private Client at Stronachs LLP Email: gregor.mitchell@stronachs.com www.stronachs.com Q: My partner and I are writing wills. My children are over 16 and live with my ex-wife. I want my partner to be comfortable and to protect my estate for the children. How do I ensure my ex-wife does not inherit?
Your ex-wife has no legal entitlements. Your divorce lawyer should have checked survivorship destinations, nominations and other similar provisions were cancelled on divorce. A new will is essential to protect your partner.
If you own property with your partner, ensure there are no legal restrictions on disposal. The best way to achieve your wishes is a will trust. This might be liferent or discretionary. A solicitor will advise what is best.
Your partner could enjoy your estate during his or her lifetime, while preserving the capital for the children. This is a liferent trust. You can empower the trustees to give your partner the assets if it becomes desirable. Ordinarily, they would preserve and grow the assets for your children.
Your children might pass assets they inherit from your estate to your ex-wife. To avoid this, create a successive liferent for them, with power to your trustees to advance capital to the children when this possibility has passed.
It is not possible to disinherit your children entirely. On your death they have entitlements known as ‘legal rights’. They may choose not to claim, but if they do, they forfeit other rights under your will. A solicitor will advise you about minimising legal rights entitlements. One way would be to hold as much as possible in your partner’s name as your children’s legal rights will not extend there. Be aware that the assets might not then be available to the children in the future. There is also the issue of asset splitting on separation and you must be properly advised and protected before taking this step.