step dad died will invalid

Keep_pedalling

theoretica wrote: »

I think it worth consulting a solicitor as wills becoming invalid on marriage was surely not intended to decrease the amount the spouse inherits. I don't know if the powers that be have any discretion to accept the will without the mention of a planned marriage, but think it worth getting good professional advice on it!

In England and Wales the intension is irrelevant, there is no discretion. If they happen to live in Scotland however marriage does not automatically invalidate the will.

Yorkshireman99

theoretica wrote: »

I think it worth consulting a solicitor as wills becoming invalid on marriage was surely not intended to decrease the amount the spouse inherits. I don't know if the powers that be have any discretion to accept the will without the mention of a planned marriage, but think it worth getting good professional advice on it!

The rules in England an Wales are very clear and nobody has any discretion in the matter. For a will to remain valid after a marriage it must contain a clause stating that it is made "in contemplation of marriage to XXXX" where XXX is the name of the spouse actually married. Such a clause without the intended spouse's name would be invalid.

brianh

Mr Bumble's view on the law in Oliver Dickens come to mind.

From the information given the OP's stepdad clearly meant to leave his assets to his wife. I hope she get's some good news from the solicitor.

Keep_pedalling

brianh wrote: »

Mr Bumble's view on the law in Oliver Dickens come to mind.

From the information given the OP's stepdad clearly meant to leave his assets to his wife. I hope she get's some good news from the solicitor.

In this case the law is clear and for good reason, if a pre marriage will left everything to people other than the person they married then just because the testator forgot or just had not got round to sorting a new will their spouse would inherit nothing.

The law is not the problem, it is the millions of people who fail to to either make wills at all, or fail to review them after major changes in their life occur that is the problem.

Mojisola

KentishLady wrote: »

The house is worth let's say £950k (will be this plus or minus £200k) and there is about £17k in stepdads savings account.

Mum owns half the house in her own right so his estate is worth £492k. Mum will inherit the first £250k, plus half the remainder - £121k. Leaving £121k less any debts to the estate to be distributed between the 5 adult children.

Keep_pedalling wrote: »

The law is not the problem, it is the millions of people who fail to to either make wills at all, or fail to review them after major changes in their life occur that is the problem.

It's surprising that people with such a big asset failed to make up-to-date wills and take financial advice on inheritance tax - perhaps others will see this as a wake-up call and sort out their affairs.

Yorkshireman99

brianh wrote: »

Mr Bumble's view on the law in Oliver Dickens come to mind.

From the information given the OP's stepdad clearly meant to leave his assets to his wife. I hope she get's some good news from the solicitor.

It makes no difference. In England and Wales the law on this is crystal clear. In the absence of the required clause the whole will is invalid upon marriage.

theoretica

Yorkshireman99 wrote: »

The rules in England an Wales are very clear and nobody has any discretion in the matter. For a will to remain valid after a marriage it must contain a clause stating that it is made "in contemplation of marriage to XXXX" where XXX is the name of the spouse actually married. Such a clause without the intended spouse's name would be invalid.

The act is slightly less stringent than that "Where it appears from a will that at the time it was made the testator was expecting to be married to a particular person and that he intended that the will should not be revoked by the marriage" so I still think that avenue is worth exploring with a solicitor. For instance, were they engaged when the will was made and could she prove that?

Yorkshireman99

The Administration of Justice Act 1982 amends the 1837 Wills Act and makes it clear that the will has to make it clear. External evidence carries no weight.

securityguy

theoretica wrote: »

The act is slightly less stringent than that "Where it appears from a will that at the time it was made the testator was expecting to be married to a particular person and that he intended that the will should not be revoked by the marriage" so I still think that avenue is worth exploring with a solicitor. For instance, were they engaged when the will was made and could she prove that?

It's irrelevant. You're ignoring the key words "from a will": that excludes all external evidence. The will (in this case) is not read in any sort of context, just in isolation. The will has to state, in terms, in its plain meaning, that it is not intended to be revoked by marriage. You can't rely on attendance notes, who was engaged to whom, recollections of the witnesses, whatever: it's a very straightforward test.

KentishLady

Thanks all for your input. It turns out the appointment she made was not with a solicitor but with a company who deal with wills and probate.

I have strongly advised she gets both legal and financial advice.

I can't remember how to quote so sorry if this is clunky!

Theoretica - it is highly unlikely the will is valid but this will be fully checked out. They married more than 5 years after the will was made and it makes no mention of marriage or engagement.

Mojisola - mum has kept her will updated but she could not force her husband to do the same. Unfortunately he suffered from dementia for a number of years before he died and when he still had capacity refused to make a new will or arrange power of attorney etc. He was clear he wanted the house to go to his wife and had verbally told the children they would not inherit a share (which led to them falling out with him for over a year) but clearly he didn't fully understand that without an updated will his wishes were unlikely to be carried out.

Realistically step-dad's children will inherit something, but it isn't yet clear how much that will be as not all debts have been confirmed, there may be inheritance tax to pay, and one of the children is considering nominating mum to receive their portion.

I have briefly discussed with my sibling tonight and between us we will help raise funds to buy out our step siblings if necessary and it is what mum wants to do.

Clearly there are financial implications for us and our husband's too so it will be imperative for us to have independent financial and legal advice.

One thing I am not clear on is how the inheritance tax is calculated. Is it on the full value of his estate (less his allowance) or is the bit mum inherits excluded at this point?


Kl.