Concerns regarding a will being contested

SarahB16

I am at my mum’s house and she is discussing with me her concerns regarding her will being contested when she passes.  She has asked me to post on this forum for advice. 

By way of background my mum has two daughters, myself and my sister, and she would like to leave her house (which makes up the vast majority of her estate) to me.  As an aside I would give approximately £20k-£30k each to her two grandchildren (my sister’s two children) but if we could leave that out for the purpose of this question.     

My mum fell out with her other daughter (my sister) approximately 12 years ago and the situation has not improved.  (Please do not comment on this situation which I know is very sad for everybody and if you are interested in reading the background you can read further details in the first post I ever posted on this forum if you search on my profile).   

My mum lives on her own and would like to give me 50% of the house today (no cash would transfer) as she thinks this would make it harder for my sister to contest the will on my mum’s passing. 

My mum’s house is worth approximately £400k. 

There is always the possibility that my mum may need to go into a care home and I’ve always said to my mum as far as I’m concerned the house is 100% hers until she passes and any proceeds from the sale of her house would be hers to use as she wishes. 

The intention of this is not to avoid inheritance tax as I don’t think there would be any tax to pay but to mitigate the very high probability that my mum’s will will be contested by her other daughter and she is looking for advice as to what she can do now. 

My mum would be very grateful to hear suggestions please as to what she should consider doing to mitigate the risk that her other daughter gets part of the value of her house. I should add she has a supplementary note already attached as part of her will that explains why her will has been written how it has been.  

Thank you in advance for your replies.  

theoretica

The grounds a child could have for successfully contesting the will would include if the parent has been supporting them, and left them in financial difficulty.  Or if the parent had made promises about leaving them something, especially if the child acted in response (eg worked in the family business).

Or the whole will could be contested on the grounds that someone (you probably) influenced your mother in writing it, or some other flaw in writing and signing it.  About which your mother should be consulting the solicitor who wrote it.

Giving you half the house now would be a poor tax move.  As she is still living there it would be a 'gift with reservation' and still count towards her IHT limits.  In addition you would become liable for CGT on your half from when it was given to you until it is eventually sold.  And it potentially complicate your life around stamp duty and both your lives if either of you need to claim benefits.

Mojisola

SarahB16 said:By way of background my mum has two daughters, myself and my sister, and she would like to leave her house (which makes up the vast majority of her estate) to me. 

There is always the possibility that my mum may need to go into a care home and I’ve always said to my mum as far as I’m concerned the house is 100% hers until she passes and any proceeds from the sale of her house would be hers to use as she wishes.

In addition to seconding everything theoretica has said, if Mum gave you half of the house and you were in receipt of means tested benefits when Mum needed the capital, you couldn't just give it to her without losing your benefits.

My parents didn't divide their estates equally between (for very good reasons) - they were advised to get the wills made by a solicitor without any of their offspring present, ensure their reasons were discussed and notes taken by the solicitor and kept (in case the solicitor was called on to give evidence) of the meeting and that a letter should be kept with their wills, explaining the uneven division.

A will becomes a public document after probate; the letter would stay private between the offspring so it's easier to be blunt (if necessary).

cymruchris

Where is her existing will? If it's a professional will that's been stored at a local solicitors, she can write a letter to accompany it outlining why she made the decision she did. The will itself has to be very factual - I leave this to him and this to her. The accompanying letter can go into as much detail as she wants, so that if the will is ever contested, the letter can be issued and would form the basis for defence if ever it was needed.

Anyone can contest a will, and if there's property involved a caveat can be placed to block probate for a couple of pounds, but take it to court becomes incredibly expensive. Once someone that wants to contest a will sees the evidence provided, they usually back off. (And if they don't - unless they have strong evidence to the contrary is going to cost them dearly).

As others have said, there are very specific grounds on which you can contest a will (such as being a financial dependent - and such things as the larke v nugus request to prove the person was in their right mind when the will was produced), so as an added layer of protection, your mum might want to write a letter to accompany her will to outline why she's made the decision she's made.

Marcon

SarahB16 said:

I am at my mum’s house and she is discussing with me her concerns regarding her will being contested when she passes.  She has asked me to post on this forum for advice. 

My mum would be very grateful to hear suggestions please as to what she should consider doing to mitigate the risk that her other daughter gets part of the value of her house. I should add she has a supplementary note already attached as part of her will that explains why her will has been written how it has been.  

Thank you in advance for your replies.  

She'd do far better to get advice from a solicitor and get them to draw up a new will and also advise on the content of a suitable side letter. That way she has a bang up to date will, attendance notes written by the solicitor confirming these are her wishes and why, and (hopefully) maximum peace of mind. Whether it is advisable to leave your sister a small bequest is another point on which proper legal input would be helpful.

Nothing she/the solicitor/the will says can stop your sister contesting the will; all you can do is minimise the chances.

Giving you half the house now is a bad move for any number of reasons and won't stop your sister contesting the will if she's determined to do so.

stuhse

Follow the procedures others have laid down in this thread so that the will has been properly written without your influence. It won't necessarily stop your sister contesting the will, but it will mean she will fail. Someone I know recently contested his dads will.....the wording was clear and the will indepently written with the assistance of a solicitor.  He failed and now has £80,000 of costs to pay. (As well as handing over the property he was seeking to keep for himself)
It may be common for parents to equally distribute their estate between their children, but it not a right, or law. What is law is that the estate is distributed in line with the words of the will. ....others havevlaid out the conditions when contesting those words might be successful. 

YoungBlueEyes

I agree with all the above posts - a solicitor is the way to go.

When I was having my will drawn up (there are a couple of people who I thought might cause trouble) I asked on here if I should leave them £1 in my will so they couldn't claim to have been left out. The advice was not to. My solicitor confirmed that - if you want to leave someone out just leave them out. In my side letter I explained why those 2 people were not included. My sol that was the right thing to do.

Is there any communication with your sister? Could mum and her talk it about at all? Perhaps with a family friend present as oil on the troubled waters?

Awful situation. Good luck OP.

Mojisola

YoungBlueEyes said:

Is there any communication with your sister? Could mum and her talk it about at all? Perhaps with a family friend present as oil on the troubled waters?

I wouldn't do this.  Sister may think that she will get 50% of the estate after Mum's death. 

If she is told now that won't be happening, she may cause problems to try to get Mum to change her mind.

If Mum's mental capacities deteriorate, sister may manage to get a new will made and signed without Mum realising what she's doing.

If Mum wants some money to go to the grandchildren, it would be best to have it in the will.  If they are minors, she can specify who looks after the money for them until they are 18 - otherwise their mother will most likely have control of it.

theoretica

But if a new will is written also maybe no harm in keeping the old will rather than destroying it.  Just in case it is useful as evidence that this is a longstanding decision.  And it would mean there is no point in contesting whether a new will is drawn up properly, as rather than reverting to the intestate division of assets it would only mean the older will was used.

[Deleted User]

Mojisola said:

SarahB16 said:By way of background my mum has two daughters, myself and my sister, and she would like to leave her house (which makes up the vast majority of her estate) to me. 

There is always the possibility that my mum may need to go into a care home and I’ve always said to my mum as far as I’m concerned the house is 100% hers until she passes and any proceeds from the sale of her house would be hers to use as she wishes.

In addition to seconding everything theoretica has said, if Mum gave you half of the house and you were in receipt of means tested benefits when Mum needed the capital, you couldn't just give it to her without losing your benefits.

My parents didn't divide their estates equally between (for very good reasons) - they were advised to get the wills made by a solicitor without any of their offspring present, ensure their reasons were discussed and notes taken by the solicitor and kept (in case the solicitor was called on to give evidence) of the meeting and that a letter should be kept with their wills, explaining the uneven division.

A will becomes a public document after probate; the letter would stay private between the offspring so it's easier to be blunt (if necessary).

Good advice.

My S-i-L’s Mother passed away last year. He and my daughter were the only family members that offered any support to her over a number of years. Mother sensibility got a solicitor to draft the Will. Her solicitor’ clerk took contemporaneous notes and Mother wrote a letter spelling out her reasons for leaving every to my S-i-L. S-i-L was not present when the Will was drafted and signed.

As expected, the Will was contested by all the family members using a ‘No Win - No Free’ solicitor. The claim was full of unsubstantiated legal claims and personal attacks etc. Rather than get into any debate, S-i-L engaged a family law solicitor who wrote a two page letter refuting every legal point put forward. The ‘ No Win - No Fee’ solicitor pulled out.

S-i-L now has the very small Estate but family relationships are to say the least strained

YoungBlueEyes

Mojisola said:

YoungBlueEyes said:

Is there any communication with your sister? Could mum and her talk it about at all? Perhaps with a family friend present as oil on the troubled waters?

I wouldn't do this.  Sister may think that she will get 50% of the estate after Mum's death. 

If she is told now that won't be happening, she may cause problems to try to get Mum to change her mind.

<snip>

Good point Mojisola, I hadn't considered that. Giving the sister advance notice perhaps wouldn't be wise.