Wills - Deed of variation - advice please?

localhero

If the value of the father in law's estate is worth [FONT=&quot]£250,000 or less, then his wife will legally inherit the entire estate under the law of intestacy.

It will be her alone that decides if she wants to play ball and sign the Deed of Variation. Doubtless her solicitor will have told her this, so she's in a very strong position. It is also irrevocable, so she will be in no rush, and in any case something of a fool to sign away all of her rights without gaining decent legal advice.

The Deed is a piece of paper that will take no time to draw up, so I suspect her solicitor might be dragging their heels while this thing plays out.

The fact that she was his wife - albeit briefly - raises the inevitable argument that she was a `dependant` and so therefore entitled to a share of the estate.

My strong advice would be to compromise with her and attempt to arrive at an amicable resolution. If I were in your shoes I would consider an equal five way distribution a good result.

Otherwise if you cannot agree the main beneficiaries here will be the lawyers. This has the potential to get really expensive. Litigation is also lengthy and uncertain and the courts would have to weigh up all the facts when determining the outcome.

If none of the children were dependent on the father in law, the courts could award her everything, and all things considered she seems to be in the far stronger position.

An intestacy can be varied in the same way that a Will can. The wife will be first in the pecking order to apply to be the `administrator` so doubtless her solicitors will be in no rush to relinquish their chance to administer the estate.

OP, before you begin negotiations, I would advise that you get some decent legal advice of your own so that the situation can be carefully assessed. You will want someone with expertise in contentious probate - not your regular high street bod.

Contact a member (or two) of STEP and sound them out informally before instructing them. Finally, try and maintain a good rapport with the wife so that things can be resolved sensibly.

Good luck.
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NAR

devils_advocate wrote: »

....... but only in England & Wales.

and Northern Ireland.

localhero

PezUK wrote:

A DOV can only be executed providing the beneficiaries of a will agree to the variation. In this case, there is no will as it was rendered invalid when the deceased re-married, so a DOV doesn't apply.

That is incorrect. A Deed of Variation can vary an intestacy as well as a Will and must be signed by those giving up a benefit - in this case the wife.

Further info here:

http://www.taxationweb.co.uk/tax-articles/capital-taxes/what-happens-if-you-dont-make-a-will.html

KellyWelly

This is a good example of why parents who remarry should take steps to protect anything that they wish to pass on to their children. No disrespect to the new wife, but she has contributed nothing to this estate, presumably it was built up by the FIL and MIL over their lives together and the 2nd wife, a 3rd party completely with no connection to the estate other than the recent marriage can now walk away with it all and there's nothing anyone can do about it.

This happened to our family when my great grandma left everything 'in trust' for her grandchildren with her 2nd husband who got remarried and gave it all to the new wife. She has no children and last I heard from her intended to leave it to her new partner's children from a previous marriage. My great grandma was a widow and single mother who worked hard all her life to pay for her house and build up a very substantial amount of savings that went on to line the pockets of somebody else, completely against her wishes.

It's so important to make a will and get proper legal advice to do so,

secret_tramp

DVardysShadow wrote:

- the solicitor is looking after his client, the new wife, in suggesting it takes time,AFAICS. I don't see how he can act for the rest of you, because of conflict of interest.

Totally agree.

I think the starting point would be to sound out the wife to see what she wants.

Baggysdad

Umm,

Step mum has inherited Dads entire estate under intestacy.

There's no Will to contest and you can't contest intestacy.

The only question to ask here is - Does step mum want to give some of her money/property to her step children?

If the answer is Yes, great, negotiate how much. Every pound negotiated is a pound bonus.

Then decide whether to do this as a gift from step mum to step children (probably not a good idea) or whether to do this by doing a Deed of Variation on the intestacy distribution (better).

Remember that step mum can change her mind at any time through the negotiations and up until the gift or the Deed of Variation is made.

If the answer is No. Tough, I'm afraid.


B

wise_fool

Baggysdad wrote:

There's no Will to contest and you can't contest intestacy.

This is an interesting one.

Baggysdad, the Inheritance (provision for dependants) Act 1975 allows claims against the estate whether there was a will or intestacy by those who feel that inadequate provision was made for them.

Whether the adult non dependant children would succeed or not is a moot point, but on the facts it's not as cut and dried as a testator that has deliberately omitted his kids from a will.

The courts would be obliged to try and work out the intentions of the deceased. If it could be shown that he had no idea about marriage revoking a will then the children would have a reasonable chance in succeeding in a claim against the estate. Obviously we don't know the circumstances or means of the wife and this will be a major factor.

I agree that negotiation is the way forward here.

Baggysdad

Thank you wise fool for pointed out the error/oversight in my post. You are entirely correct.

I stand corrected.

B