Is a Larke vs Nugus worth the £1500 + VAT if not contesting the contents of the will??

Zimara25

RAS said:

I think your elder child needs to go, independently, to see a lawyer on their own to understand the implications of their father's will.

First he might find it useful to ask the executors for details of the trust, as there are major implications for his life over the next 5-10 years. He needs to know if it is a bare trust or a discretionary trust.

If is is a bare trust, then the executors have to give him his share now, if he asks for it.

There are major costs in running a discretionary trusts, so please can the executors detail how they expect these to be funded? As it will affect how much he eventually inherits. If he can find a good link or leaflet on the management of disrectionary costs, include that.

And any trust that prevents him accessing his father's money over the next five years will limit his choices given the lack of support and finances at a vital stage in his life resulting from that decision.

I might add also tying him to the family home when he might want to fly elsewhere, unless he fancies a large CGT bill.

:

Wow, some really good points, thank you. If i'm an honest I only really thought about how the will affect me by my husband cutting me out but never considered the impact on such things as CGT or diminishing their opportunities as a first time buyer. Very useful information, especially the trust. There are no liquid assets to pay for a discretionary trust and my solicitor did say words to such effect. I can't remember my solicitor exact words but my take on it was that if i were granted a lifetime interest in the house that this would solve many issues.

RAS

Others are better qualified but he needs to start asking questions around.

If your husband left his share to his children without a life interest trust, then they lose any first time buyers rights, it can seriously affect their ability to claim any benefits, I'm not sure what effect it has on student loans etc. It also means that unless they live in the house permanently, they have to pay CGT on any increase in value between the date of death and date of sale, less any time occupied. Oh, and they'd be paying second home SDLT if they bought their own home before the sale.

A life interest trust would enable them to retain all of the lost benefits and avoid the tax liability.

Keep_pedalling

Unfortunately the DoV is a non-starter because one of the beneficiaries of the trust is a minor, so only a court can vary the terms of the will or invalidate it. Your husband was either badly advised or not advised at all because his will is only going to cause problems for you and your children.

Zimara25

Keep_pedalling said:

Unfortunately the DoV is a non-starter because one of the beneficiaries of the trust is a minor, so only a court can vary the terms of the will or invalidate it. Your husband was either badly advised or not advised at all because his will is only going to cause problems for you and your children.

Many thanks. 

I now understand that as I have a minor any change of the will needs to go through the court and a solicitor is required to facilitate if i want a "life interest". I am now better informed to respond to her email.

Keep_pedalling

Zimara25 said:

Keep_pedalling said:

Unfortunately the DoV is a non-starter because one of the beneficiaries of the trust is a minor, so only a court can vary the terms of the will or invalidate it. Your husband was either badly advised or not advised at all because his will is only going to cause problems for you and your children.

Many thanks. 

I now understand that as I have a minor any change of the will needs to go through the court and a solicitor is required to facilitate if i want a "life interest". I am now better informed to respond to her email.

Hopefully this should be reasonably straight forward as you are not trying to trying to disinherit anyone and you are the guardian of the minor involved. I am sure your husbands friends don’t want  to be lumbered with being trustees of a discretionary trust for the next 11 years.

RAS

Keep_pedalling said:

Unfortunately the DoV is a non-starter because one of the beneficiaries of the trust is a minor, so only a court can vary the terms of the will or invalidate it. Your husband was either badly advised or not advised at all because his will is only going to cause problems for you and your children.

The other complication (for anyone else in this situation) is that a DOV has to be completed within two years of death. So the beneficiary can just sit tight if they don't want to co-operate and let time run out.

Marcon

Zimara25 said:

Marcon said:

Zimara25 said:

Hi All,

I have instructed a solicitor with regards to my late husbands will. He didn't have a previous will and made his will 4 day before he passed of stomach cancer. The executors refused to send me a copy of the will so my solicitor sent them a letter and we received the will. My husband left everything to our two children for reason which i understand but we owned a property together (tenancy in common). The children's 50% is to go a trust fund set up for when they reach 25 years of age. I would like to apply for a life interest in the asset as one of the executors suggested that when they do reach 25 years i would need to mortgage to give them the money.
My solicitor has requested the will notes from my husbands solicitor but have refused and have suggested sending them a Larke and Nugus letter for £1500. 

Given i don't wish to contest the wishes of the will i do want peace of mind that I won't have to mortgage at the age of 55 in 7 years time, i just want peace of mind that i can stay in the family home with no potential awkward conversations with my kids later (not that i think they would)??

Thank you in advance.

Why is your solicitor quoting £1500 for simply sending what is a standard legal letter?

My thoughts exactly, which is the reason for this post.

Have you asked them to justify it?

TBagpuss

Because your younger child is under 18 I think the only way you can address this is an Inheritance Act claim - my understanding is that one of the things they would look at in considering whether your husband had made reasonable provision in the will would be what you might have expected to receive in a divorce. After a long marriage, and with dependent children, the starting point would have been 50/50 including a share of any pensions, and that would then have been adjusted to take into account any differences in your respective names and earning capacities, where the children would live with.

I suspect that if you end up not receiving the pensions then a court might well consider it reasonable for you to have more than 50% of the house .

Because your younger child is only 14,the executors / trustees would not have the power to agree to give up any part of the their inheritance on their behalf , although if an agreement could be reached then an agreed order could be sibmitted to the court .

While legal proceedings are expensive they are likely to be the only way forward. As your elder child is 18 they are an adult and the executors / trustees would be expected to consider their views.

IS there any chance of you being able to remortgage now and move? If so, would looking at offering to buy out the trust be an option? If you were pursuing an I.A. claim then a life interest is onw possibility, but another might be or you to pay a (perhaps smaller) lump sum to the trust or them to invest for the beneficiaries, and for you to then own the property outright / with a mortgage

it would also be sensible for you to contact the pension, make clear that you are his widow, that there is no final divorce or financial order and that you will struggle to meet the needs of the children if the pension is not paid to you. IF you do then receive  lump sum or ongoing survivor's pension that that would be relevant to your mortgage capacity and income needs. 

Don't leave it at his executors having asked them mnot to pay, contact them directly and request that they do pay you as his widow, and if necessary, ask your older child if they are willing to call as well and support that request. 

Unfortunately, I think this is situation where not getting, and paying for, proper legal advice is a false economy,.

silvercar

We managed to disband a discretionary trust that was set up where one of the beneficiaries was a minor. The parent of the minor was able to agree to it. 

Zimara25

Marcon said:

Zimara25 said:

Marcon said:

Zimara25 said:

Hi All,

I have instructed a solicitor with regards to my late husbands will. He didn't have a previous will and made his will 4 day before he passed of stomach cancer. The executors refused to send me a copy of the will so my solicitor sent them a letter and we received the will. My husband left everything to our two children for reason which i understand but we owned a property together (tenancy in common). The children's 50% is to go a trust fund set up for when they reach 25 years of age. I would like to apply for a life interest in the asset as one of the executors suggested that when they do reach 25 years i would need to mortgage to give them the money.
My solicitor has requested the will notes from my husbands solicitor but have refused and have suggested sending them a Larke and Nugus letter for £1500. 

Given i don't wish to contest the wishes of the will i do want peace of mind that I won't have to mortgage at the age of 55 in 7 years time, i just want peace of mind that i can stay in the family home with no potential awkward conversations with my kids later (not that i think they would)??

Thank you in advance.

Why is your solicitor quoting £1500 for simply sending what is a standard legal letter?

My thoughts exactly, which is the reason for this post.

Have you asked them to justify it?

Yes thank you and they have responded with an acceptable reply this morning.