Is a special type of Will required in our case?

[cloggs]

My wife and I are intending to write our wills, leaving everything to each other.
However, we want to leave legacies to our different favourite charities and we want to make sure that the surviving spouse does not make changes against the deceased spouse’s wishes (under external influences say).
Also, in case of unforeseen hardship, we would not want the survivor to be denied access to funds otherwise left by the deceased spouse as charitable legacy.
Is there a type of will that caters for this requirement?

[hc4361]

You really need to think again. What you are proposing is a trust which requires potentially expensive management. Imagine you were to die first, leaving everything to your wife with a proviso that x amount is to go to y charity on the death of x providing she doesn't need it during her lifetime due to unforeseen circumstances leading to hardship.
The trustees would have to determine whether the circumstances did in fact amount to hardship, and how much she should have. The trustees could refuse where, if you were alive, you would agree with your wife. Or the trustees may be too lenient.
Assuming you trust each other, you could do mirror wills where you both leave everything to each other and if you are predeceased, the estate to be divided between your intended charities.

[buildersmate]

Agree with that. You are merely going to create some nice lucrative work for a solicitor somewhere - who will, of course, be absolutely delighted to help you create such a pair of Wills.
It's your business, but if one has died, does one really get fussed about what might happen to one's money after death? Personally I subscribe to the view that one leaves one's earthly chattels to whom one wishes and one doesn't get too hung-up about what that person might do with it.

[fredpuli47]

Each of you can make their own separate will. In their own will he or she makes a specific bequest ( expressed as a set sum of money) or bequests to whatever charity or charities they like. Whoever dies first, it makes no difference to any charity named as receiving a bequest under their will. That charity will get the bequest in their will. On that person's death the survivor can't change the will without the consent of the beneficiaries, in this case the charities. Trusts don't come into it that way

And, in each person's own will they put that the residue of their estate is left to the other spouse, 'if he/she survives me'. (They should say what is to happen to the residue if the other predeceases them).That means that everything remaining, that hasn't been given in the will to the charities, goes to the surviving spouse.

The person can change their own will at any time, by writing a new will which says any previous will is revoked and this will is now the last will, or by writing a codicil to the existing will to alter the sums given as bequests or remove some or all of the bequests. A codicil requires the same legal formalities as a will does.It's usually better to make a new will rather than add a codicil to the existing one. That's the only way of revising the gifts during the lifetime of the person whose will it is, if hardship ensues and the money to charity is needed for themselves or their spouse.

Also a dependent of the deceased can claim for provision to be made for them from the deceased's estate, whatever the will says, in certain circumstances.

[buildersmate]

Undoubtedly a good answer, Fred, (and better than mine) but how does solve the 'hardship' requirement of being able to reverse out the charitable legacy from the first to die, when only the second partner is still living?l

[fredpuli47]

Yes, buildersmate. And?
It solves the first problem, as explained
.I'll assume that the husband (H) dies first
The second problem. That H wants his will to give to charity , residue to W, unless W needs the charity money either immediately or the future because of hardship.Immediately is easy. Don't make a bequest to charity.Leave the whole estate to W and leave it to W make any gift to charity that H wishes. The wish expressed by H to W is no more than a wish, and it's at her discretion whether she follows it or not then or in future.

OR make a provision in the will that the charitable bequest is to fail , not to take effect, if the value of H's estate is below a certain value at the death of H.

A trust doesn't really solve this problem. H wants her to have her share as an absolute gift.It must be given to her as soon as possible. It's only the charity money that is to be held on the chance that she made need it. When is the charity to be paid? The trustees are holding it against a future uncertain event (her hardship) .It is uncertain to time but may be in definition: how do they define 'hardship' unless it is defined in the trust deed by reference to W's future income or assets? To be sure,you'd need a term that they are to release the money and end the trust when W says she is in hardship !

Short answer is to make W sole trustee. She can break the trust when she decides she's in hardship (as defined, or not defined) and leave it to the charity to argue that she's in breach of trust because she isn't in hardship ! So why bother with a trust at all?

[fredpuli47]

Edit: Last paragraph,2nd sentence should read; 'She can end or break the trust when...'