Transfer of house ownership to avoid contesting a will?

DRP

Hi

I'll outline the scenario but will leave it a little vague to aid anonymity... I would really appreciate any advice as to the best course of action :money:

An elderly gentleman owns his house outright and has 2 children 'A' and 'B', both middle-aged.

Older child 'A' was estranged from his father for decades (families, eh?) but within the last 3 to 4 years has started visiting again. During those years, child 'B' has had a very good relationship with father and for many years has acted as support and more recently as part-time carer. 'A' and 'B' are not on speaking terms.

For the reasons above, the father wishes for 'B' to be the sole beneficiary of his will. However, upon finding this out, 'A' says that after his father passes away, he will contest the will "for the principle" , even if the estate is frittered away on legal fees a la Jarndice vs Jarndice

'A' is significantly better off financially than 'B' so could afford to 'out-gun' 'B' in the courts if it ever came to that.

What would be the best course of action to protect the father's wishes for his inheritance?

Transfer ownership to B now? (obviously there would be inheritance tax implications)

Mojisola

I had a friend whose mother was in a similar position. Her solicitor advised to leave a nominal amount to the estranged child in the will and write a letter which would be kept with the will explaining why the one son was being left a smaller amount.

My parents did the same with their wills. Their wills leave more to one sibling than the others - for a very good reason that we all understand. Despite this, the solicitor advised writing the letter just in case any of us had a change of heart after they had died.

Mojisola

DRP wrote: »

However, upon finding this out, 'A' says that after his father passes away, he will contest the will "for the principle" , even if the estate is frittered away on legal fees a la Jarndice vs Jarndice

I would try and get evidence of this - a recording, email or letter. Judges tend to be very unhappy about people who use the law for their own entertainment.

DRP

Mojisola wrote: »

I had a friend whose mother was in a similar position. Her solicitor advised to leave a nominal amount to the estranged child in the will and write a letter which would be kept with the will explaining why the one son was being left a smaller amount.

My parents did the same with their wills. Their wills leave more to one sibling than the others - for a very good reason that we all understand. Despite this, the solicitor advised writing the letter just in case any of us had a change of heart after they had died.

Thanks for that - i believe the solicitor has said that 'B' should stay out of this totally (so 'B' cannot be seen as unduly influencing their father in this matter), and the father should come to the solicitors office to make the property transfer and include a letter as you describe. No mention of leaving a nominal amount to the other sibling - do you know what the reason for this was?

Mojisola wrote: »

I would try and get evidence of this - a recording, email or letter. Judges tend to be very unhappy about people who use the law for their own entertainment.

Yes , that would be ideal, but probably impossible now (it was a private conversation).

Mojisola

DRP wrote: »

Thanks for that - i believe the solicitor has said that 'B' should stay out of this totally (so 'B' cannot be seen as unduly influencing their father in this matter), and the father should come to the solicitors office to make the property transfer and include a letter as you describe. No mention of leaving a nominal amount to the other sibling - do you know what the reason for this was?

The solicitor who advised this said that the sibling who has been left out sometimes argued that the parent didn't have capability and had "forgotten" that they had another child or that the other siblings had told the parent that they had died or other such nonsense.

The combination of the small legacy and the letter explaining the decisions seems to work.

Good advice about B staying right out of it. It may even be worth asking the solicitor for a letter saying that the father wasn't accompanied by B and that at no time was B involved in the decisions about the will.

Thinking belt and braces, perhaps a visit to the GP by the parent as well at about the same time to discuss his capability - make sure it's in the notes.

The other way of dealing with the problem would be for the parent and B to become "joint tenants" of the house. When the father dies, B would be the sole owner of the property. Again, make sure solicitors and GPs are involved to make sure A can't argue undue influence from B.

There may be a problem here if the father needed residential care.

Old_Git

I know off a situation many years ago where one son was left a farm and a coal business the other son was left £1 .
So he couldnt contest and say he got nothing.

gavinh1175

I know of someone who was a sole beneficiary of their father's will. His brothers were estranged from the father.

Solicitor said the only way they could contest if they were under 18 yrs, or for example, paid towards maintenance (ie. paying towards a disabled adult's care).

The father was divorced so the only person who could make a claim was his ex-wife (she hadn't re-married), but she would be making a claim against her own son...

Inheritance (Provision for Family and Dependants) Act 1975.

I agree, best to leave them a nominal amount, than cut them out of the will completely.

PaulLuke

gavinh1175 - the grounds you are referring to are purely based on a claim under the legisation you are referring to.

However as has peviously been mentioned, it is possible to bring a claim under other grounds, such as capacity, invalid execution etc. The advice to B is spot on that, if the father has indicated a desire to make unequal provision for his children then a visit to a solicitor, without B being present during any discussion, would be the best starting point. B needs to be seen not to be involved in the instructions re the will as that will result in a very messy situation.

If there is any concern over the testamentary capcity of the father then the solicitor might suggest getting an assessment by a medical professional.

DRP

PaulLuke wrote: »

gavinh1175 - the grounds you are referring to are purely based on a claim under the legisation you are referring to.

However as has peviously been mentioned, it is possible to bring a claim under other grounds, such as capacity, invalid execution etc. The advice to B is spot on that, if the father has indicated a desire to make unequal provision for his children then a visit to a solicitor, without B being present during any discussion, would be the best starting point. B needs to be seen not to be involved in the instructions re the will as that will result in a very messy situation.

If there is any concern over the testamentary capcity of the father then the solicitor might suggest getting an assessment by a medical professional.

Thanks for this.

I have been updated on the situation:

• Under his own steam, the father took a letter to his solicitor which stated his wishes (but not the reasons).
  
• The solicitor has added notes to the file confirming that he is fully compos mentis (although no medical professional has been asked for their assessment).
  
• B has now received the documents confirming she owns the father's property.

This seems to largely parallel the advice here (and that given by the solicitor).

Hopefully it is all completely watertight.

Options to strengthen B's position:

• Ask father to obtain a medical assessment
  
• Leave a nominal legacy to A

Is this a fair summary of our options or could anyone suggest anything further? (comments would be much appreciated)

simpywimpy

If one sibling is estranged and has had no financial help, subsistance from the father, is not financially dependent on him etc, then there is no contest for the will.

If the estranged sibling has plenty of money however, there is unlikely to be satisfaction gained from having been left a small amount of money.

Mojisola

DRP wrote: »

Options to strengthen B's position:

• Ask father to obtain a medical assessment
• Leave a nominal legacy to A

Is this a fair summary of our options or could anyone suggest anything further? (comments would be much appreciated)

As the solicitor has made notes about the father, that should be enough. If they want the extra security, the other options are there.

A lot depends on how nasty A could be. The nastier things could get, the more ways of rebutting him the better.

Have they considered the deprivation of capital issue if the father needed funded care in the future? Could B find the money to pay for it? Would the house have to be sold and where would that leave B?