Help with elderly parents wills

chalky_75

Am in the process of organising my elderly parents wills etc. Recently went to the solicitors with my 2 sisters and when with the solicitor asked my dad if we were the only children he said yes. However he has 3 children from a previous marriage but doesnt like to talk to us about them. He hasnt had any contact with them for many years but I am concerned that upon his death we could have a problem with them contesting the will. I dont have a problem with them getting their share but can anybody tell me where we stand and should we inform the solicitor?

TheWaltons_3

Tough one Chalky. And I do think that it is only fair for the 3 previous children to be informed of their fathers death, no matter how old they are... however, your Dad may not want them having a claim to his and his Wifes will. Well, obviously he doesn't.

I would speak to the solicitor again regarding this.

margaretclare

Hi

A few questions:

1. How 'elderly' are your elderly parents?
2. Why are you organising wills for other people, even your parents? Is there some reason why they cannot organise their own?

Being in a second, or even a third, marriage, is quite common nowadays. It follows therefore that there are going to be offspring from earlier relationships. My DH, for instance, has been married twice before, and has a son and a daughter. I regard them as my stepson and stepdaughter. I was widowed and have a surviving daughter. We have 5 grandchildren between us, 3 of mine and 2 of his. We have 'organised' our own wills, and all 5 grandchildren are named.

I think your Dad and Mum should discuss with their solicitor exactly what they want, without you and sisters present. They should then draw up wills to specify exactly what they want and who gets what. If it's you, or the offspring of an earlier marriage, it's entirely their decision and nothing to do with you.

I cannot imagine DH and I going along to the solicitor's with any of our offspring in tow - not that they would want to. Just cannot imagine it! A person's will is theirs, and no one else has a say in the matter.

We have been to the solicitor's ourselves this afternoon and have sorted out EPAs, naming each other as first attorney and the solicitor as the second one. The documents are to be kept with our wills. No one else had any say in any of this, how our wills were drawn up, and that's how it should be.

People do seem to think they can get very involved in their parents' private and personal affairs!

Margaret

PS: A further thought - I have just discussed this with DH who is sitting here. We doubt that the solicitor should deal with a client with son and 2 daughters present. Client confidentiality and all that. Not ethical for a solicitor to do this.

Errata

This seems a bit odd. When I recently accompanied my very elderly stepfather to the solicitors I stayed in the waiting room whilst pa and the lawyer sorted things out. This was after the lawyer had satisfied himself that pa had the mental capacity necessary to make a new will, Pa's memory not being as good as it was but his intellect is unimpaired.
Could the other children challenge the will? I have no idea, but if the other children discover that second lot of children were present during the will making discussion - who knows.
I can think of no reason why other parties should be present.

chalky_75

Thanks for your thoughts. My parents are 85 and 77 and getting a little confused so wanted us with them to sort out the EPA. They forgot to take their wills and when asked for them it was decided that they needed to have new ones drawn up. Like you we were surprised that we were asked in at the beginning but mum and dad were happy to have us there and we kept out of it, sitting at the back and keeping quiet most of the time unless asked for some input.

My main issue is that when dad dies I really dont want us (including mum) to have to deal with the problems that may occur because dad has not said there are three other children from a previous marriage. Of course he must do whatever he wants to do with his money, give it to the donkey sanctuary if he wants but I just want to know if he should be more open with the solicitor at this point.

I can assure you that I would not choose to get involved in my parents personal and private affairs but I know they want my support and I will always give it when asked.

Errata

Chalky, it's lovely that you're giving your parents support if they're becoming a bit vulnerable, and of course quite appropriate that you should be with them for the EPA stuff. I hope you mean the EPA's are already organised and just need bringing into play.
Just a caveat. If your parents want to set up EPA's and make new wills, they must have the mental capacity to understand what they're doing and what the implications of their decisions mean. If, like my pa, their memories are not too good but their intellect is unimpaired, eveything should be ok. But if that's not the case and the EPA's and new wills are done, then the previous children could have good grounds to mount a challenge.
Perhaps you could have a chat with your dad about his other children and ask him if he thinks it might sensible to just mention their existence to the solicitor?
He may just have clean forgotten to think about them in the stress of the meeting.
HTH

bristol_pilot

The 'other' children are quite likely to mount a challenge if they are simply omitted from the will. A clause needs to go into the will naming them and specifically excluding them from receiving any inheritance. This demonstrates that the 'other' children have not simply been overlooked.

localhero

Hi Chalky,

Your dad may be uncomfortable with this (sadly quite common situation), but it's important that the solicitor is told about them. Firstly, the wording of the will might at present divide the estate on second death 'to my children who survive me' in which case they would get a share anyway.

If the will instead names the children that your dad wants to inherit, then the 3 disinerited children would be entitled to challenge his will. Whether or not they succeed will depend upon all the circumstances, but there is less likelihood if they are adults (rather than dependant children). They could base their reasons for a challenge on the fact they've been 'overlooked'.

There are 2 ways to prevent this argument succeeding 1) leave them something minor in the will (to pre-empt 'overlooked' argument) or 2) in my opinion the preferable course of action is for your dad to write a letter addressed to his executors stating that he has deliberately excluded a,b,c from his will and to state the reasons. This document should then be kept with his will. His children have 6 months from the Grant of Probate being obtained to challenge the will. If they do, this document will be a powerful document that the court will consider if they need to (and therefore lessen the likelihood of the challenge being successful).

Some people state in the will itself the exclusion(s) (and the reasons) but is not advisable. As this issue could be contentious, your parents should return to the solicitor this time unaccompanied so that if a challenge arises on the basis of your 'undue influence' the solictor's file notes will record that that was clearly not the case.

When your dad dies the executors would also be wise to delay distributing his estate for 6 months whilst the potential threat exists for a challenge to arise. I hope this helps and I hope the solicitor's advice will be in the manner suggested.