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Stuart J
Stuart J, Solicitor
Category: Family Law
Satisfied Customers: 23353
Experience:  Senior Partner at Berkson Wallace
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Brother died 24/11/19 leaving a will, divorced 5 years ago

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Brother died 24/11/19 leaving a will, divorced 5 years ago due to spouse unreasonable behaviour. Life insurance left in trust benefiting his ex, should his solicitor at time of split have advised him to amend policy details relating to the trust? He believed that since he has divorced his ex would not benefit.
JA: Where is the ex? It matters because laws vary by location.
Customer: Believe living in Leicestershire address unknown
JA: What steps has the ex taken so far?
Customer: None as far as I know
JA: Anything else you want the Lawyer to know before I connect you?
Customer: not at the moment

The situation with regard to the life insurance policy is that once it is written in trust for a 3rd party, it cannot be taken out of that trust until the beneficiary agrees although if he was still paying the premiums, he could simply stop paying them.

What we don’t know is whether the solicitor that dealt with the divorce was aware of this policy because the solicitor would not normally advise on anything which he was not aware of.

It may be that her remaining the beneficiary of the policy was part of any financial deal.

You say that he believed that since he was divorced his ex would not benefit but it depends whether he took advice on that and what he was told because the situation is as I mentioned in the first paragraph of this reply and it could well be quite simply that your late brothers understanding was incorrect.

If I have answered your question for you, at the top of the page, you should see a rating facility. Can you please rate my reply 3 stars or more because that really helps me? Please note you are not rating whether it’s favourable, because sometimes you may not get the answer you want, but basically my knowledge and way of dealing.

The thread does not close and I am happy to answer any questions you may have arising from this.

Kind regards

Stuart J and other Family Law Specialists are ready to help you
Customer: replied 6 months ago.
In my view I would have thought that his solicitor should have asked the question at the time of the divorce proceedings i.e. do you have any insurance policies that would benefit his wife. I acknowledge that my brother and I were wrong in assuming that the beneficiary would cease after the divorce. His ex wife treated him appallingly hence his divorce. Is there any way that this trust can be annulled by way of probate? He died almost penniless.

The only way that the trust can be dissolved is with the consent of the parties or a court order.

If there was a financial order with regard to the divorce (it doesn’t always happen) he may not have actually thought that the life insurance may be an asset.

A lot also depends on whether it was just life insurance or whether there was a cash benefit because of that was a cash benefit, it could have been cashed in (but not if it was in trust for his wife) or it may be that it only paid out on death. We would need more details of the policy.

If the solicitors dealing with the financial order in respect of the divorce, the solicitor should have asked about all the assets and your brother should have disclosed this policy. Depending on the type of policy and if the was any cash value it would then have been taken into account whereby the wife would get the benefit of the policy and your brother would have got “other things”.

If it was just a policy which paid out on death, then he would get no benefit from it in any event. It is very common for ex-spouses to keep policies like this in force to pay them along in lieu of spousal maintenance, if their spouse dies.

Customer: replied 6 months ago.
The insurance policies are for Protection for Life. Alas these were made under Trust, Scottish Widows state that they are unable to make 3rd party payments therefore only his ex wife can benefit, policy proceeds are not due to the estate. However, on the Decree Absolute there are statements that include “The respondents claims for Pension Sharing Orders and Pension Attachment Orders shall be dismissed and shall not be entitled to make further Applications in relation to the marriage. Do I need to apply for a Court Order to dismiss the Trust?

I’m sorry to say that I think you will be wasting your time because of that financial order wording draws a line under it.

The policy was taken out for the benefit of his spouse and she was named and therefore when he dies she gets the benefit.

I don’t why he continued to pay the premiums meanwhile I think at best it would be the refund of those premiums.

There may be a claim against the solicitor in negligence (a complaint to the Legal Ombudsman is free) for failing to advise on the ramifications of the life insurance policy but that is only relevant if your brother told the solicitor of the existence of the life insurance policy.

I know you say that your brother died penniless but as you appreciate, even if this policy was for his own benefit, and not for his spouse, he wouldn’t get anything from it anyway. What it does not do course provide any money to pay for the funeral et cetera et cetera.

I’m sorry, I wish I could give you a favourable answer. Someone else may feel otherwise so by all means ask for the second opinion. The solicitor sometimes arguing court because one believes they will win and the other believes they will win and the ultimate decision comes from the judge. This is one I would be putting my money on I am sorry to say.

Customer: replied 6 months ago.
Thanks Stuart, understand this situation is complicated. Have to consider costs etc. Will close now. Best Regards.

Glad to help