Family dispute over Mother-in-law's Will

TBagpuss

Malthusian said:

Arthog said:

That would be very similar to the Frank Sinatra clause. His Will was executed without delay or challenge

Would it work in this country?

Bear in mind that for a Frank Sinatra clause to work you have to leave your beneficiary more than a token sum in the first place. So if you want to disinherit someone completely (or almost completely) it's no use. All the following things have to be true:

a) you must love your beneficiary enough to want to leave them a sizeable amount

b) but not enough to leave them the amount they may think they're entitled to (e.g. in this discussion, the share of the estate that would be theirs under intestacy)

c) and think they're likely to challenge your distribution of the estate

If someone has a valid claim to a larger share under the Inheritance (Provision for Family and Dependents) Act, a Frank Sinatra clause is worthless - you can't legally stop your beneficiaries asserting their rights in law.

Even if you leave the troublesome beneficiary reasonable provision, the I(PFD) Act may provide some insurance for them. Let's say I am childless and have one sibling. My parent splits their estate three ways, me, my sibling, and my siblings' children. They include a Frank Sinatra clause. I challenge the estate anyway and say I had a reasonable expectation of being left half.

My claim fails as the judge decides that a third is reasonable provision.

The Frank Sinatra clause kicks in and now the Will says I get zero.

The Inheritance (Provision for Family and Dependents) Act kicks in and says that the Will now fails to make reasonable provision, and awards me my third of the estate back. So I lose nothing (except that I might well have to pay costs).

Naturally it's perfectly possible that a judge might decide that "reasonable provision" may be less than a third, so I do lose something after the Frank Sinatra clause has overridden the original distribution and the I(PFD) Act has overridden it in turn; but under the I(PFD) Act I can't be threatened with the prospect of losing everything.

I am not certain that it would work this way and cannot cite any precedents, but it seems a strong enough argument that an ornery beneficiary might well decide it's worth a go.

Frankly (lol) I think that as long as you write a sensible Will that doesn't create problems for your beneficiaries even if they're all reasonable, it's not worth worrying about. A beneficiary of a decent-sized estate could demand that all their siblings pay them £10,000 or they'll challenge the Will and probably cost everyone more than £10,000 even when they lose; there's every chance that the siblings would pay up. Nothing you can do to stop that whatsoever. You can't solve every problem for your beneficiaries from beyond the grave.

I  think in your scenario, the Judge hearing the I(PF&D) Act claim would consider whether the original provision was reasonable and whether the provision following the implementation of the clause would be reasonable, rather than it happening as 2 claims. 
And as they would take into account the testators reasons for having made the provisions they did, might well reach the conclusions that the provision under the will (e.g. £1 because you challenged) was entirely reasonable in all the circumstances.

(Just to add, I am another childless person who supports the OP in this scenario. 
I have no idea whether my parents plan to leave anything directly to my niece and nephew.  If they chose to, then that is entirely up to them. .

I do think that it is helpful if people talk to their children / family ahead of time, or failing that, if they leave a letter giving an explanation as to why they made the decisions they did. Sometimes, it's not about the money, it's about a person feeling that their parent / other relative cared / didn't care about them as much as bout others, or feeling that they were judged as being less valued for whatever reason. 
I think that there can be a huge difference between someone who knows for sure, because they've had the conversation, that they got less than another family member for a specific reason (e.g other individual has more dependents, person getting less had big windfall from somewhere else) and not because they were less loved or valued. Even if the recipients don't agree with the reasons, they get the reassurance that they haven't been passed over because they are less loved. ) 

Malthusian

TBagpuss said:

I  think in your scenario, the Judge hearing the I(PF&D) Act claim would consider whether the original provision was reasonable and whether the provision following the implementation of the clause would be reasonable, rather than it happening as 2 claims.

Agreed. Hence my paragraph beginning "Naturally..." where I acknowledged that the judge might leave them with less than they started with, after having their legacy reduced to "reasonable provision" (minus legal costs). I just don't think they can be left with nothing by a Frank Sinatra clause without it being at least partially overridden by IPFD.

And as they would take into account the testators reasons for having made the provisions they did, might well reach the conclusions that the provision under the will (e.g. £1 because you challenged) was entirely reasonable in all the circumstances.

I don't see that happening. Precedents such as Ilott suggest that a judge is unlikely to take the view that a child of a deceased should be disinherited completely. In law, if you make a baseless case against someone and lose, the maximum "punishment" is usually to be made to pay their legal costs. It would set a dangerous precedent if someone was punished for misguidedly attempting to assert their legal rights by more than that.

The distinction is very important because if the IPFD provides a backstop to a Frank Sinatra clause, then for an oculi senes caeruli to have any point, you need to leave your troublesome beneficiary more than reasonable provision but still less than they think they're entitled to. Otherwise they have nothing to lose.

How on earth would you judge how much that is? Beats me. You'd probably have to be as rich as Sinatra before you could even attempt to put figures on that band of the estate, below which a Frank Sinatra clause is pointless (as an IPFD claim will immediately override the default legacy, not just the post-challenge legacy) and above which a Frank Sinatra clause is also pointless (because even greedy beneficiaries are happy). This is why the more you think about it, the closer you come to acknowledging that instead of trying to write your Will to anticipate posthumous challenges, it's much easier to accept that they're not your problem.

TBagpuss

Ilott was very unusual on its facts though, so isn't s good precedent for what might happen in other cases.(and of course although Mrs Ilott 'won' in that she went from £0 to £50,000,  she didn't get what she original sought, which was money to buy a house, and it was in the context that it was clear that the testator had behaved in a very unreasonable and unreasonably vindictive way.

Wellesley is probably more realistic as a guide to what might be seen as reasonable (£20,000 to an adult child, from a £1,3M estate was seen as reasonable, and the Inheritance Act claim for more failed) 

But I agree that trying to guess what a Judge right determine was 'reasonable' is always going to be challenging, and that there will always come a point where you have to shrug and acknowledge that it isn't going to be your problem by the time it is being decided! 

Marvel1

The mother in law has stated what she wants in the will.
The sister in law can foxtrot oscar, her third makes no sense.  Your husband is only getting 25% (a quarter) not a third.

Marvel1

Gers said:

Dox said:

MoneySeeker1 said:

naedanger said:

MoneySeeker1 said:

There is some logic on the one hand of treating grandchildren as "people in own right". On the other hand it is a very old-fashioned view to think siblings with fewer children count for less on the other hand.

I actually think what the op's mother-in-law has willed is the more modern approach. 

It is not a case of saying the siblings with fewer children count for less. They count equally. The op's husband is not going to get his children's share. They are adults. So the op's husband was willed the same share as his siblings.

I also think it is more forward thinking to recognise that as people are living much longer it is actually the second generation who are likely to get best use/need of money. Young adults are more likely to have greater need. In any event the second generation are only getting to share one quarter of the estate, so it is nothing too radically different from just sharing between the children.

Disagree - as the generations that are currently middle-aged to late middle-aged are the first generation where "marriage was expected - and then subsequent divorce is commonplace". Add all the other stuff impacting on various members of that generation and the chances are they've been left little (if anything) by their own grandparent generation and it puts a different slant on things.

A younger person will be much more likely usually to "blow the lot" and do something like taking off for a gap year round the World or the like - whereas a middle-aged person would be more likely to be an age where they "should" be financially straight but divorce/job loss/you name it meant that they weren't and they were at or getting an age where retirement was looming and they absolutely had to be "financially straight" or, for instance, retirement might land up getting postponed or a home-owner chucked into rented accommodation by divorce couldn't manage to get a home of their own again. Upsetting for someone at "should be financially straight/retirement looming or here" age to watch a younger person just "blowing" it (as many will - and it isn't the case they would all be financially prudent and think "Right - there's my deposit to buy my first house" for instance).

What does all this theorising count for? The will reflected the wishes of the person making it, so why the huge debate?

Probably because she's in exactly the same position and has been arguing for her brother's children to be denied monies. See her thread in this board. 

Explains the username.

Marvel1

DairyQueen said:

Hands up all the supporters of OP who don't have children?

*Hands up* 
I have told my parents not to include me in the will, i would rather "my share" for my nephews and future nieces.  Never taken/borrowed money off them.

thepurplepixie

elsien said:

thepurplepixie said:

I think I'd like to give mine away before I die but of course the problem is knowing when that will be.  I'd quite like to see my kids enjoying it.

https://metro.co.uk/2020/09/16/billionaire-89-says-hes-happy-to-be-broke-after-giving-entire-8bn-fortune-to-charity-13281560/#:~:text=Charles%20Feeney%20donated%20all%20of%20his%20%248billion%20fortune,giving%20away%20his%20entire%20%248billion%20fortune%20to%20charity.

The only trouble is being broke for the next 10 years if he makes it to 99.  

Keep_pedalling

thepurplepixie said:

elsien said:

thepurplepixie said:

I think I'd like to give mine away before I die but of course the problem is knowing when that will be.  I'd quite like to see my kids enjoying it.

https://metro.co.uk/2020/09/16/billionaire-89-says-hes-happy-to-be-broke-after-giving-entire-8bn-fortune-to-charity-13281560/#:~:text=Charles%20Feeney%20donated%20all%20of%20his%20%248billion%20fortune,giving%20away%20his%20entire%20%248billion%20fortune%20to%20charity.

The only trouble is being broke for the next 10 years if he makes it to 99.  

He did set aside $2M for his old age so that should not be a problem for someone as frugal as him.

Trotter65

Update 18 months on - our son and daughter have both just moved into their own flats - something they could not have done without their Grandma’s inheritance. So they have achieved exactly what she wanted! Still no contact with sister in law!!! Their loss!!