Vary Consent Order

Consent Order dates back to 2003 but because proceedings were commenced in 1998 an earmarking/lump sum Order was included in the CO.
My ex wife sadly passed away in 2005 and the lump sum order now passes to her estate.
Advice recently received suggests I have grounds to apply to vary the CO due to the original intention of the lump sum Order was to provide for my ex and not beneficiaries of her estate.
Trying to establish is it worth pursuing through the courts or are my chances not as good as the advice I received.

You will probably need to take the original order to a private client solicitor who is familiar with both family law and probate law. Once the CO was sealed and the absolute granted,the money became hers - and what happens to the money afterwards is her business, regardless of any intention. I would think that your CO would also include a clause removing succession rights, meaning that neither party can inherit the other's estate (or part of) if one should die unless stipulated in a new will made after the divorce.

You say she died in 2005 - can I ask why you are now, some 12 years later seeking to recover this lump sum? In all likelihood the money will have long gone.

I suspect that this is not a situation that will bring you any joy.

Since posting I have spoken with para legal person from Wikivorce which conflicts the advice received from the principal associate of a high profile law firm.
Apparently you cannot apply to vary an order if one of the party have deceased.
You can apply to set aside the order and you are right my chances in these circumstances are not good to nil.
The Barder principle has very strict timescales and criteria and can be expensive where one considers varying a CO for those considering doing this.
The reason for looking into this now is because I am considering triggering my pension rights which would in turn trigger the Earmarking/Lump Sum being paid into her estate.
I am awaiting confirmation from the Pension Companies but I understand my choices are trigger my Pensions as above or leave in situ and pass onto my estate which would leave the full amount with interest for my beneficiaries.
I would then be looking at funding my retirement through alternative means.
Meeting up with a financial advisor in due course and will see what advice I am given.

You are correct that Barder events have a very tight timescale - typically up to around 3 to 6 months after the order was created.

If you can arrange to take your pension without taking a lump sum (i.e. all as income) then you would 'frustrate' the order. This would depend on the specific wording of your order. Or as you mention, you could leave it in place and it would pass in full to your beneficiaries.

Interestingly the pensions advisory service seems to think that no benefits would be payable in your situation : www.pensionsadvisoryservice.org.uk/conte...s/Divorce_SPOT25.pdf