leaving a house in a will but to only one child.when there is two

Richard_Webster wrote:

I am not sure there is really going to be a problem in a lot of cases in putting the reasons in the will itself.

I can give you three reasons not to.

Your Will will become a public document and airing your dirty linen in public isn't a particularly good idea. Secondly stating your reasons for disinheriting someone in the Will potentially throws fuel in the fire and can provoke litigation from those that disagree with what you say. Thirdly, many disinherited people will be deterred from contesting the Will because their chances of success are too remote and the costs of doing so are very high - and so stating the reasons in the Will in most cases will be pointless in any case.

Richard_Webster wrote:

Comments made by other posters about small gifts to deter applications are correct, but these days they would normally have to be in 4 or 5 figures for most estates.

They are not correct. The law in this country allows those making a Will to dispose of their estates how they want. If somebody wants to omit someone from their Will they can do so. Leaving someone a gift whether it is a teapot or £10,000 won't prevent somebody contesting the Will if they think it has not made reasonable provision under the Inheritance Provisions for Family and Dependants Act 1975.

Therefore anybody disinheriting somebody in their Will should state in a separate letter that they have not overlooked that person and state their reasons - just in case a claim should emerge. Adult children who were not financially dependant are unlikely to be successful in a claim, but those who are financially dependant on the deceased such as minors, spouses and in some cases ex spouses, are far more likely to be successful.

I would conclude, that anybody making a Will should therefore consider very carefully all of the competing claims against their estate so that potentially expensive problems can be minimised, as ultimately the only winners will be the lawyers.

A will can also be altered (after the testatrix death) by a Deed of Variation provided all the beneficiaries agree, so the person left out could appeal to the good will of the executor and remaining beneficiaries to count them back in.

Quote:
Originally Posted by Richard Webster
I am not sure there is really going to be a problem in a lot of cases in putting the reasons in the will itself.

I can give you three reasons not to.

Your Will will become a public document and airing your dirty linen in public isn't a particularly good idea. Secondly stating your reasons for disinheriting someone in the Will potentially throws fuel in the fire and can provoke litigation from those that disagree with what you say. Thirdly, many disinherited people will be deterred from contesting the Will because their chances of success are too remote and the costs of doing so are very high - and so stating the reasons in the Will in most cases will be pointless in any case.

1. Obviously if the person was well known, it would be very sensitive and the possibility of others looking at the public record would be very great - but in the real world how many actually go out of their way to look at some random person's will?
2. This would be a personal decision for the testator in the light of his/her knowledge of the people involved. There could be cases where it was felt less likely to provoke litigation by not washing dirty linen in public and to that extent "protecting" the person disinherited.
3. Giving reasons, whether in the will or in a separate note, strengthens the executor's position in defending any claim by the disinherited person. The cost of litigation is obviously a major factor for the person contemplating a claim, but adding reasons cannot do any harm and in some cases a potential claimant who thought they might have a claim will be further discouraged by a solicitor telling them that the court will have regard to the reasons for the testator's decision. Localhero's argument was to have a separate note to give reasons - but here he is saying that even that isn't really necessary. May be not vital, but certainly helpful.

I don't really think there is a lot between us. The main thing is that any such note giving reasons is kept with the will. On balance, unless there are pressing reasons such as the celebrity status of the testator or the perception that the person disinherited might feel annoyed at reasons being stated in a document that others (family and friends) might see, I would prefer to put the reasons in the will. Localhero's view isn't the same as mine - but I am not saying he is wrong - in many cases whether the reasons are in the will or in a note won't make any difference.

Quote:
Originally Posted by Richard Webster
Comments made by other posters about small gifts to deter applications are correct, but these days they would normally have to be in 4 or 5 figures for most estates.

They are not correct. The law in this country allows those making a Will to dispose of their estates how they want. If somebody wants to omit someone from their Will they can do so. Leaving someone a gift whether it is a teapot or £10,000 won't prevent somebody contesting the Will if they think it has not made reasonable provision under the Inheritance Provisions for Family and Dependants Act 1975.

Therefore anybody disinheriting somebody in their Will should state in a separate letter that they have not overlooked that person and state their reasons - just in case a claim should emerge. Adult children who were not financially dependant are unlikely to be successful in a claim, but those who are financially dependant on the deceased such as minors, spouses and in some cases ex spouses, are far more likely to be successful.

I would conclude, that anybody making a Will should therefore consider very carefully all of the competing claims against their estate so that potentially expensive problems can be minimised, as ultimately the only winners will be the lawyers.

This is right. However, I was making the point that in practice it is often better to make a gift of more than you think the person deserves to discourage the litigation.

For instance, if you are a widow/widower with 3 children and an estate of £300,000 then in most family situations you would divide it equally between the three. If one of the children has not made any contact for years then if you left them a teapot and didn't give any reasons why there was nothing more, they would feel much crosser and more likely to litigate than if you left them say £20,000 with reasons. Given that the child was adult and able to look after himself and had had minimal contact with his father/mother for many years, would a judge feel that such provision was unreasonable?

OK the judge might think the teapot was reasonable given the circumstances, but there must be a considerable risk that he would order a few thousand. Why take that risk? That's all I meant.

Pennywise wrote: »

I was the accountant for a wealthy family some years ago when the father died and we had a situation where two of the children contested the will.

Both the solicitor who drafted the will and myself (who advised on inheritance tax during the will writing process) had to give affidavits to the court to give evidence as to what the father had told us in respect of his wishes and reasons for different legacies to each family member.

Because we could give a background as to his reasoning, the will was allowed to stand and the challenge failed.

I think it is excellent advice to have a "side letter" kept along with the will, and even better to get a good solicitor and other professionals who should do the job properly in the first place when drafting the will, and then who should have good files which can be called upon later as evidence.

When someone is deliberately being disinherited, it is even more important to do the job properly and not go down the route of do-it-yourself wills or cheap will writing firms.

So if you leave different legacies to each child but each child gets 'something' does that mean they can still contest the will because they didn't get the same as a sibling? Or can they only contest it if they get nothing and a sibling is left something?

Richard_Webster wrote:

Localhero's argument was to have a separate note to give reasons - but here he is saying that even that isn't really necessary.

Richard, please read my posts carefully, before you try and contradict me.

What I have been saying quite consistently, is that the reasons should not be given in the Will for the good reasons I gave. You would be surprised at how many people look at Wills once they become public. A separate letter should be written and kept with the Will so that the executors can present it to a court IF required - in most cases it won't.

Keeping_Motivated wrote:

So if you leave different legacies to each child but each child gets 'something' does that mean they can still contest the will because they didn't get the same as a sibling? Or can they only contest it if they get nothing and a sibling is left something?

The law allows any child (adult or otherwise) to contest a Will if they feel it makes inadequate provision for them.

The advice given by Richard Webster of leaving say £10,000 won't prevent a claim if another child has got £200,000. This advice is traditionally given by solicitors on the basis that it couldn't be argued that the person had been 'overlooked'.

That's why I personally would leave the person out altogether and have a separate letter stating that the person hadn't been overlooked and then give reasons. Remember, for an adult child who is no longer dependant, they would in all probability be unsuccessful if they challenged your Will in any case, and the letter kept as a back up, just in case.