Ignoring parts of a will

DinkyLass

My friends step-dad has died. The deceased jointly owned a property with his wife (not tenants in common). His will states that he wanted to split his 'share' of the property 50/50 with his wife and son from his first marriage. The wife gets to live in the property but if she wants to sell she has to give the son half the value. Both the wife and son were names as executors (the wife wasn't even aware the will existed)


My friend is not mentioned in the will at all and actually grew up in the house mentioned. The son from the previous marriage was estranged for many years and effectively crept out of the woodwork a few years ago.


It turns out the son, after finding out his Dad was dying, had a 'solicitor friend' write this will in this hospital while his Dad was actually on his death bed and got him to sign it, so there's currently a situation going on where the wife wishes to contest the will but it's looking like it will be a lengthy and expensive process.


In the meantime, the surviving wife has been in touch with the land registry and been advised that her husband, as a joint owner, should have severed the tenancy in order to leave a share to his son so the wife has been able to transfer the deeds to herself without probate. She now holds the property title deeds in her name and has written a new will leaving the property to her child (my friend).


There's a lot of other nasty goings on around this as well which I won't go into!


So, my question is....if this will is allowed to stand and they go through the process of applying for probate to deal with some other aspects of the will, could the wife get into trouble for effectively ignoring the will in regards to the transfer of property, or was she well within her rights (legally and morally) to get the deeds transferred?

Money_maker

If he split his 'half' with his wife and son, surely his son is entitled to 25% (as in half of half).

paddy's_mum

If the house was jointly owned, the property passed, legally and in its entirety, to the second wife by virtue of being the survivor of the two owners.

That cannot be overturned.

The failure (as the LR correctly said) was in the husband neglecting to sever the joint tenancy.

The "solicitor friend" either didn't exist or failed to ask a multitude of highly relevant questions!

G6JNS

DinkyLass wrote: »

My friends step-dad has died. The deceased jointly owned a property with his wife (not tenants in common). His will states that he wanted to split his 'share' of the property 50/50 with his wife and son from his first marriage. The wife gets to live in the property but if she wants to sell she has to give the son half the value. Both the wife and son were names as executors (the wife wasn't even aware the will existed)


My friend is not mentioned in the will at all and actually grew up in the house mentioned. The son from the previous marriage was estranged for many years and effectively crept out of the woodwork a few years ago.


It turns out the son, after finding out his Dad was dying, had a 'solicitor friend' write this will in this hospital while his Dad was actually on his death bed and got him to sign it, so there's currently a situation going on where the wife wishes to contest the will but it's looking like it will be a lengthy and expensive process.


In the meantime, the surviving wife has been in touch with the land registry and been advised that her husband, as a joint owner, should have severed the tenancy in order to leave a share to his son so the wife has been able to transfer the deeds to herself without probate. She now holds the property title deeds in her name and has written a new will leaving the property to her child (my friend).


There's a lot of other nasty goings on around this as well which I won't go into!


So, my question is....if this will is allowed to stand and they go through the process of applying for probate to deal with some other aspects of the will, could the wife get into trouble for effectively ignoring the will in regards to the transfer of property, or was she well within her rights (legally and morally) to get the deeds transferred?

If, as you suggest, the house was held as a joint tenancy then ownership passed to the survivor. By registering it in her sole name she has done nothing wrong legally or morally. Whatever the will says about the property makes no difference because the property did not belong to the deceased. The rest of the will stands. The question of the legality of the deathbed will is a separate issue that does not affect ownership of the house.

G6JNS

Money_maker wrote: »

If he split his 'half' with his wife and son, surely his son is entitled to 25% (as in half of half).

He did not have a half to split. With a joint tenancy ownership pases to the survivor.

FreeBear

DinkyLass wrote: »

It turns out the son, after finding out his Dad was dying, had a 'solicitor friend' write this will in this hospital while his Dad was actually on his death bed and got him to sign it, so there's currently a situation going on where the wife wishes to contest the will but it's looking like it will be a lengthy and expensive process.

Challenging the validity of the will or contesting the contents ?

The process for each is different. The first involves entering a caveat and then investigating the circumstances surrounding the execution of the will - There have been several high court rulings on this subject. If the will is found to be invalid, then the previous will would stand, or if an earlier one does not exist, the rules of intestacy kick in.

Contesting the provisions made in a will must be done within six months of probate being granted. If a caveat has been entered and an appearance made, then granting of probate is delayed until the caveat is lifted.

Going down the route of a caveat is the cheapest option. Contesting a will once probate has been granted is very expensive.

Mojisola

DinkyLass wrote: »

My friends step-dad has died. The deceased jointly owned a property with his wife (not tenants in common). His will states that he wanted to split his 'share' of the property 50/50 with his wife and son from his first marriage.

In the meantime, the surviving wife has been in touch with the land registry and been advised that her husband, as a joint owner, should have severed the tenancy in order to leave a share to his son so the wife has been able to transfer the deeds to herself without probate. She now holds the property title deeds in her name and has written a new will leaving the property to her child (my friend).

So, my question is....if this will is allowed to stand and they go through the process of applying for probate to deal with some other aspects of the will, could the wife get into trouble for effectively ignoring the will in regards to the transfer of property, or was she well within her rights (legally and morally) to get the deeds transferred?

As others have said, she hasn't ignored the will. Her husband didn't own half the house so he couldn't give it away.

Unless there are other major issues, is it worth contesting the will?

The widow is one of the executors so she will have an equal say about what happens.

G6JNS

FreeBear wrote: »

Challenging the validity of the will or contesting the contents ?

The process for each is different. The first involves entering a caveat and then investigating the circumstances surrounding the execution of the will - There have been several high court rulings on this subject. If the will is found to be invalid, then the previous will would stand, or if an earlier one does not exist, the rules of intestacy kick in.

Contesting the provisions made in a will must be done within six months of probate being granted. If a caveat has been entered and an appearance made, then granting of probate is delayed until the caveat is lifted.

Going down the route of a caveat is the cheapest option. Contesting a will once probate has been granted is very expensive.

If an asset gifted in the will no longer belong to the testator there is nothing to contest.

antrobus

DinkyLass wrote: »

...It turns out the son, after finding out his Dad was dying, had a 'solicitor friend' write this will in this hospital while his Dad was actually on his death bed and got him to sign it, so there's currently a situation going on where the wife wishes to contest the will but it's looking like it will be a lengthy and expensive process.....

The right of survivorship trumps the provisions of the will. I can only conclude that the 'solicitor friend' was an idiot.:)

antrobus

Mojisola wrote: »

As others have said, she hasn't ignored the will. Her husband didn't own half the house so he couldn't give it away.,,,.

To confirm

If you own a property as beneficial joint tenants, either as a married couple, with a partner, or a friend, in the event that your co-owner dies, the whole of the property passes to the survivor, outside the terms of your Will. This means that any gift of a property owned in this way under the terms of your Will, will fail and your chosen beneficiary will not receive your share in the property. This is called ‘survivorship’ and is a leading cause of complaint when properties are left to people in a Will.

http://www.athertongodfrey.co.uk/news-archive/553-survivorship-and-property-inheritance

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DinkyLass

FreeBear wrote: »

Challenging the validity of the will or contesting the contents ?

The process for each is different. The first involves entering a caveat and then investigating the circumstances surrounding the execution of the will - There have been several high court rulings on this subject. If the will is found to be invalid, then the previous will would stand, or if an earlier one does not exist, the rules of intestacy kick in.

Contesting the provisions made in a will must be done within six months of probate being granted. If a caveat has been entered and an appearance made, then granting of probate is delayed until the caveat is lifted.

Going down the route of a caveat is the cheapest option. Contesting a will once probate has been granted is very expensive.

Thanks for all the responses guys, my friends Mum is seeking legal advice so we're all hopeful that it will get sorted properly.


There is also a small business to deal with, which was jointly owned but the son had the foresight to get a tenancy severance notice drafted up and signed by his father for that one! Luckily it wasn't worth a great deal so it's not so much of a concern as the house.


I just can't get my head around someone being so underhand when his own father was dying!