Wills

[toola]

my wife and I have made a will, it is a contract will, and involves two families,both of us having been previously married. my question is, if one partner dies,can the surviving partner raise money from the equity of the property, [ it is intended to be shared equally between the two families

[black_cat51]

what is a contract will?

[toola]

Hello Black cat. It is drawn up,so that either party is legally bound to follow the terms of the will.

[Peter Pedant]

this should be in law....

I think you mean mirror will.

and as ever - it depends on the will.

[ I think there is a principle but really BM knows better that if A has left or given you property on condition that you leave it to B and you agreed then this will be enforced when you die even if you try to leave the property elsewhere ]

This is different to a neighbour who told each of five grandchildren she would leave each girl her one diamond ring.... and needless to say the cat fur flew after the neighbours death.

[woofgang]

Is that not called a "life interest" PP?

[FredPuli43]

You are not being very clear. What is 'the property' ? Does it represent the whole estate? How would anyone raise money on a house in which they only have a minority interest (which is what you seem to be asking) ? Can't see any lender advancing money when the security is not the whole property.

[Peter Pedant]

INteresting question:
You and your wife have spent money on drawing up wills that settle various issues between two families. In this case A and B properties are pooled and then divided equally between heirs of the two families.

Q.When A dies can B raise money on the settled property - A.definitely depends on the terms....

would like to know the answer when you find out
Gd q - there are circumstances when B might have used A property as a security not for the benefit of A family.....

[atalanta]

Such wills have been set aside in court, but only in cases of great need. There was one case where ( both parties having been married before, and having children) the husband died and the widow was left disabled and in want. She applied for the will to be set aside so that she could have money for her care. The judge agreed, and the dead husband's children ( then adults) ended up with almost nothing of their father's assets.

[woofgang]

It does seen to be quite a strange arrangement. Why would a couple decide to potentially leave one of them in want in order to benefit their children? In the case of needing means tested assistance, I also wonder if such a will could be construed as a method of minimising asses so as to tilt a financial assessment in their favour?

[woofgang]

ha, assets, not asses!

[Peter Pedant]

Do you have a case name for that Atalanta - i cd do with some education ...

[atalanta]

It was quite a time ago. But I expect it will be mentioned in some update to Jarman. I could easily be wrong, but I think the name "Robin" came into it. And I am pretty sure it was in the Times Law Reports.

[Peter Pedant]

Berger v Berger perhaps ? family full of lawyers - widow asks for (more) maintence/ life interest and trustees says no income to spare ?
Complicated by a delay in applying to the court.

[Peter Pedant]

There are a particular type of mirror will
called a mutual will - which expresses the wish that it is not revoked without consent of the other.

reviewed 2011 COnveyancer Property Lawyer
where the conclusion is:
As most textbook writers have pointed out, mutual wills do not come before the courts with any frequency but, when they do, they almost always raise issues of convoluted law for the academic lawyer and significant financial consequences for the practitioner and his client. For all these reasons, there is a need to be clear as to the differences between the “everyday”  mirror will and the mutual will.

Still doesnt answer whether the surviving spouse can mortgage some of the property (presumably for maintenance)
and I still think the answer is yes so long as she is give the power in the dead persons will