Challenging a Will

polybear

My Uncle died recently and we now know the terms of the Will. Basically:-

1.My Uncle has left my Aunt all his personal Chattels.

2.The House is left in Trust for their two children; my Aunt can live there etc. for the rest of her life. The Trustees have the option to sell etc. in the event that my Aunt wants/needs to move house. All pretty reasonable. HOWEVER, my Aunt will be responsible for maintenance/insurance etc.

3. Big shock no. 1 was that my Uncle has also left all his savings and investments (i estimate about £75K) in Trust for his children - my Aunt gets nothing (apart from some dividends).

4. Big shock no. 2 was that my Uncle has also left £1K to "another woman". Coupled with the fact that my Aunt has found in excess of £10K's worth of receipts for jewellery (Rolex etc.) whilst sorting his paperwork for the Executor (a Bank) then she's understandably a bit ****** off.

5. My Aunt will receive half my Uncle's pension. Apart from her state pension that's it.

My question is: Bearing in mind that my Aunt spent the last 42 years as housewife & mother to his two children etc. (as well as some part time work also) does she have any reasonable grounds for challenging the Will? The bit she would like changed is the fact that his savings & investments do not come to her (she'd quite like to change the £1K also, but has little chance of this). Is challenging a Will difficult/expensive?

Many thanks.

Polybear.

silvercar

Savings and investments of about £75k and £1k to "this woman"; sounds like someone who showed him some kindness in the past not anything untoward. I wouldn't get overly concerned about that - probably an old secretary who made him coffee every morning.

I thought you could change a will if all parties agree, presuming she is on good terms with her children they should be able to sort it out.

pickle

silvercar wrote:

Savings and investments of about £75k and £1k to "this woman"; sounds like someone who showed him some kindness in the past not anything untoward. I wouldn't get overly concerned about that - probably an old secretary who made him coffee every morning.

I thought you could change a will if all parties agree, presuming she is on good terms with her children they should be able to sort it out.

Who got the Rolex and jewellery though? I agree with you, the best option would be to talk with the children first. Any legal action can be costly and difficult. Wouldn't half of that savings be hers by right? It's not just his money if she's been a housewife and brought children up etc. She earnt it. I'd definitely consult a solicitor for a chat - I think they usually offer a freebie for the first consultation, check this first though. Also make sure she keeps to the facts with the solicitor and keeps it matter of fact and not emotive (as this takes up time). They charge by the minute usually.

fsdss

i think id be abit p**d off too if i were your aunt. i would definately seek legal advice as suggested by pickle, she's not got much to lose by doing this. sorry cant offer you more advice really.

Savvy_Sue

I do hope she'll let the £1k to the 'other woman' stand. I can see why she'd feel aggrieved and upset, but I am sure it would cost more than £1k to challenge this, and who knows what the situation with this 'other woman' was?

Talking to the children about varying the will is definitely the first step, because if there's consent /agreement then it will be easier and a lot cheaper than if there's not!

twink

how is the lady supposed to maintain the house etc if she is only going to have her pension and half of his, at least get the family to do it or contest the will

Bossyboots

This sounds rather like a scheme to avoid inheritance tax and I wonder whether the Aunt has misunderstood the true position. Usually, someone would be drawing the interest from the trust fund with an allowance for necessary capital withdrawals with the permission of the trustees. Capital withdrawals would allow her to maintain the house.

If that is not the case and the OP is satisfied the situation has been understood, then I have to presume that the property and all the savings and investments were in the sole name of the uncle. Otherwise, anything in joint names passes by survivorship and is not subject to the terms of the will.

Another explanation for a will drawn is that manner is that they were not actually married?

I think firstly it is very important to clarify that the aunt has understood the position and whether any of the items purported to be left in the will were in joint names.

After that, I think she needs to consider her position. Personally I think she should seek advice from a probate specialist solicitor and find out what her options are. If they were married, then she may well have good grounds to challenge the will under the Inheritance (Provisions for Dependants) Act. I am rather surprised that a solicitor would draw up a will in these terms for a married man unless the reasoning was protection of the estate from IHT.

If she does not want to bring a claim, as has been suggested, with the agreement of the other beneficiaries the will can be varied. I am not sure though how this applies to trust clauses.

This is something she really needs specialist advice on but I think it unlikely she will find anyone willing to give a free consultation in this area of law.

jockettuk

my oh grandad died and he left £500 to another woman,, first of all loads of questions but it turned out she was his daughter by his first marriage. they had lost touch years earlier.

secondly mabey he has left the money to the children so he knows they get it. if the wife was to remarry and die before her new partner he would get all the money. I know ive done something similar in my will to come into effect when i move in with my new partner in july. we both agreed it to protect my daughters money.

if the aunt needs the money then sort it out with the family to get some of the money but if the aunt can live on comfortably with her pension and half his, then why not leave his wishes alone after all she would leave it all to the kids anyway i hope.

polybear

Thanks for all the replies. Some further info:-

1. Inheritance Tax is probably not payable, so the Will wasn't intended as a scheme to avoid this.

2. The Will specifically states that my Aunt is to be reponsible for the upkeep of the property, Bills etc.

3. Yes - the house and all savings & investments were in the sole name of the uncle.

4. They have been married for over 42 years. The reason my Uncle always gave for leaving the house in Trust to the children was to ensure that, after his death, the children would not risk losing the house in the event that his widow were to remarry. The big shock was that he left the children all his money too, again in trust.

5. The Executors/Trustees (a bank) have clarified the position - nothing was in joint names.

6. I've done some internet searches and also spoke on the phone to a solicitor. It seems that the best way to change the will would be via a variation of the Will. However, I'm pretty sure that at least one of the children may well not play ball on this. The second option would be to go to court. Effectively this would mean that my aunt would be taking her own children to court, with no known outcome and costs that may well exceed £10K.

Polybear

Bossyboots

Thanks for clarifying polybear.

One thing that has just occurred to me is that the property now belongs to the children. I am not convinced that a clause dictating the aunt be responsible for its upkeep is valid or binding. If I were her, I would do the minimum to live comfortably there but not pay out anything to maintain it. It might be worth checking her position on this but I think it may be an enforceable and/or unworkable clause. It would not be reasonable to expect her to maintain a property that is not actually hers.

As you seem to competent in what you are doing, can I suggest you research the Inheritance (Provisions for Dependants) Act. It may sound a daunting prospect, but I am not convinced that your aunt needs to pay out in legal costs to do this once she has ascertained her position, which you appear to have already done. If she is advised she has a claim under the Act, then it should be a relatively simple task to gather the paperwork needed from the Court Service website and make the application herself.

My own view, based on your clarification, is that she shouldn't worry about the house. She has somewhere to live with a lifetime interest and I am certain she cannot be forced to maintain it at her expense. What she should be looking at is the savings, either in their entirety or the interest accruing during her lifetime. Surely her children are not so greedy and uncaring of their mother that they would seriously take this money from her.

Lillibet_2

Savvy_Sue wrote:

Talking to the children about varying the will is definitely the first step, because if there's consent /agreement then it will be easier and a lot cheaper than if there's not!

If the property & money has been left "in trust" then, regardless of whether the children are adults or not, even if the children agree this cannot be changed without agreement of the trustees who legally HAVE to act in the best interests of the children regardless of their wishes, so it is unlikey this would be the way forward. Of course, if the money has been left outright to the children then indvidually they may spend it, and in doing so return all or any proportion of their inheritance to their mother, as they see fit. It is worth noting that you can leave money in trust to someone at any age, it does not have to apply to minors but there must be some direction in the will about when the trust will end (i.e what age?) or if the recipent is only to receive the interest of the trust then what happens to the fund when the recipent dies?

Usually in this situation where all (or almost all) the estate is left to children but the spouse has livivng rights over the property then the spouse receives interest/dividends of the money. It is worth speaking to the solicitors who drew up the will as they should have advised your uncle if his wishes were not enforcable and advocated something along these lines.

Re the possability of challenging the will in court and thereby effectively taking her own children to court. Please think very very carefully about this. My M-i-L did this with my F-i-L's will, with the blessing of her eldest child and agaisnt my Hubby & her other child. The angst & pain it caused still hasn't been resolved 20 years later and I know my Hubby mourns for the relationship he lost with his (sill living & still interfearing) mother & eldest sister. Some things really are priceless.