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It is estimated that only 1 in 7 people have a Will, but increasingly in the modern family arrangement their importance is growing dramatically. Gone are the days when a husband and wife stayed married for life, had 2.4 children and relied on the Laws of Intestacy to provided that their estate passed on to their loved ones. It is now commonplace that a person may have had multiple marriages, children by different parents, or even choose to remain unmarried. In all these cases a Will is of paramount importance to direct where a deceased’s assets should be bequeathed. The Law of Intestacy seeks the last surviving blood relative and in absence of one passes the entirety of an estate to the Crown. Who would want this if they had a close friend, a cohabiting partner or a favourite charity?

One such area worthy of highlighting is the ability to give a loved one a right of occupation to remain in your property for their lifetime. To liken this to a real life example, a testator may have had children by another during their lifetime and now having ended their relationship with the children’s parent has started a new relationship with another. In my experience, whilst a testator is always concerned with the needs of their new partner, ultimately their intentions are in most cases to provide for their offspring. As a person’s most valuable asset is normally their home, this raises the question of what would happen to the property were the person to die. A right of occupation clause would be important in this case, as it would allow the testator to place their property in a life interest trust for the benefit of their children whilst allowing their current partner to remain in the property for their life. This would then serve to tick both boxes of the testator’s concerns, (1) making sure offspring are provided for and (2) making sure their new partner was not without a home. The trust would be worded in such a way to protect the children, ending the arrangement if the deceased’s partner married or cohabited, as this new habitant of the property may end up having a claim on the property if they contributed to the property’s running or improvements.

In all, making provision for children or another may not always have to be at the detriment of a new partner but in the absence of a valid Will with a right of occupation it would be. Would you like to take that chance?


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