Protecting mum's trust from step siblings

JayBirdUK

Mum and Step dad had mirror wills that left their portion of the estate to each other as trustees with Mum naming me as her sole beneficiary on step dad's death, and his naming his two children as his sole beneficiaries on his death. It was an approx. 60-40% split of estate in step dad's favour that I have absolutely no problem with and is fair based on the monies/property each brought to the table when they got together. Their property was purchased as tenants in common.

Sadly mum died 1st June and I found out today my step dad ( that I "did" have a good relationship with) is making a new will where he says that as he now "owns everything" it will be an equal 3 way split between all 3 of us children. He has also made his two children the only trustees

Given money in bank (that was a joint account) and the property value, there is an approx estate value of £600,000. With Step dad's income and outgoings there is no current need for what was the joint savings to be touched. 

I feel a lot of this is being driven by his children who are very money driven. Mum had also received approx £25000 in medical compensation that was in her personal savings account, Prior to her death she had verbally told us that she had no need so wanted to help myself and my two daughters now and give us each £5000. This was never in writing and step dad has now had all monies moved to his personal account and is refusing to carry through with this verbal wish of hers. This came about after a weekend visit from them 

So ..................................

1) Can he overwrite Mum's will ?
2) What is the best way to protect mum's trust and her portion of the estate to try and continmue her wishes and stop it falling into the hands of my step siblings

Thanks.

Marcon

JayBirdUK said:

Mum and Step dad had mirror wills that left their portion of the estate to each other as trustees with Mum naming me as her sole beneficiary on step dad's death, and his naming his two children as his sole beneficiaries on his death. It was an approx. 60-40% split of estate in step dad's favour that I have absolutely no problem with and is fair based on the monies/property each brought to the table when they got together. Their property was purchased as tenants in common.

Sadly mum died 1st June and I found out today my step dad ( that I "did" have a good relationship with) is making a new will where he says that as he now "owns everything" it will be an equal 3 way split between all 3 of us children. He has also made his two children the only trustees

Given money in bank (that was a joint account) and the property value, there is an approx estate value of £600,000. With Step dad's income and outgoings there is no current need for what was the joint savings to be touched. 

I feel a lot of this is being driven by his children who are very money driven. Mum had also received approx £25000 in medical compensation that was in her personal savings account, Prior to her death she had verbally told us that she had no need so wanted to help myself and my two daughters now and give us each £5000. This was never in writing and step dad has now had all monies moved to his personal account and is refusing to carry through with this verbal wish of hers. This came about after a weekend visit from them 

So ..................................

1) Can he overwrite Mum's will ?
2) What is the best way to protect mum's trust and her portion of the estate to try and continmue her wishes and stop it falling into the hands of my step siblings

Thanks.

1. No, but the precise wording of her will is going to be critical. Given the amounts involved, getting a solicitor to check it out for you is likely to be the best course of action.
2. Sadly verbal wishes carry little weight and there isn't likely to be anything you can do to avoid your stepfather's decision to rewrite his own will.

Given how recently your mother/his wife died, there is a strong case for not doing anything while emotions are still so raw. Money and grief never made good bedfellows. You can't stop him writing a new will, but you can hold fire on a gentle reminder of what your mother's wishes were, and see if he can be persuaded to honour these once his initial shock and grief have started to abate.

Keep_pedalling

If your mothers will created an immediate post-death interest trust giving your SF the right to remain, then although he would be the beneficial owner of the whole property your mother’s 40% share is legally owned by the trust, and he cannot include that share in his will. What is the exact wording relating to the trust ( redact personal info)

Who were the executors of her estate?

HillStreetBlues

Keep_pedalling said:

If your mothers will created an immediate post-death interest trust giving your SF the right to remain, then although he would be the beneficial owner of the whole property your mother’s 40% share is legally owned by the trust, and he cannot include that share in his will. What is the exact wording relating to the trust ( redact personal info)

Who were the executors of her estate?

Trying to get a better understanding of how this works.
Could the SF be making an error,  and  if there is a trust set up to give the OP 40% of the house on his death, what he is actually doing  would end up giving the OP 60% of the house, and 33% of any savings?

AMILLIONDOLLARS

If the property deeds are written up as Tenants in Common then whatever is written in your Mum's Will stands. It seems that he does not have a good understanding of how the deeds were written up and also your Mum's Will.  If you have a copy of these you will need to employ the services of a Solicitor, or contact the Solicitor who drew up their Wills.  Your Step Father will have to present all these documents to the Solicitor who is drawing up his new Will and he should be advised of his legal position, this point.  

 In the meantime I would contact The Land Registration website to sign up to their Alerts Service which will alert you that someone is attempting to make changing to the deeds of ownership.

If your mother had an account Soley in her name, this is part of her estate and is covered under her will. The bank/building Society should have been presented with a copy before releasing any funds to him. He should not have been allowed access to her account otherwise.  You could have a case against them.  Joint accounts are different it automatically goes to the surviving person named on the account.

Your Mum's Will cannot be changed after her Passing, if your Step Father does not make any Solicitor aware that there is a Will, he will be committing Fraud!  You will need to get a Solicitor to formally write to him.

JayBirdUK

Thanks for the responses/support so far ... here is her will (what I believe are the relevant bits)

I,MUM, of OLD ADDRESS hereby revoke all former wills and testamentary dispositions made by me and declare this to be my last Will.

1. I appoint my husband, DAD and SOLICITOR WHO WROTE WILLS of FIRMS ADDRESS AT THE TIME (this gentleman is alive but has been retired several years and no longer actively works for the firm) to be the Executors and Trustees of this my Will. I declare that the expression my Trustees shall include the trustees for the time being hereof.

2.  I give to my husband all my personal chattels as defined by Section 55(1)(x) of the Administration of Estates Act 1925 that he should deal with this bequest in accordance with any directions I give him concerning the same in any letter or memorandum signed by me. ( I don't think such documents exist so I assume this means her jewellery and the like are lost to him)

3. I give all my real and personal property of whatsoever nature and wheresoever situate of or to which I shall die possessed or entitled at my death or over which I shall then have a general power of appointment (except property otherwise disposed of by this my Will or by any Codicil hereto) unto my Trustees upon trust to sell call in and convert the same into money with power to postpone such sale calling in and conversion for so long as my Trustees shall think fit and without being liable for loss.

4. My Trustees shall hold the net proceeds of such sale calling in and conversion and the property for the time being remaining unconverted and my ready moneys upon the following trusts:

4.1 Upon Trust to pay thereout all my debts funeral and testamentary expenses and all legacies given by this my Will or by any Codicil hereto;

4.2 upon Trust to invest the residue after such payment in their names in any of the investments hereby authorised with power at their discretion to vary or transpose such investments for or into others of a like nature and to stand possessed of such investments and all parts of my estate for the time being unsold and uninvested (Trust Fund) upon the trusts hereinafter declared of and concerning the same.

 5. 

5.1  My Trustees shall pay the income of the Trust Fund to my husband during his lifetime and so that this trust shall include the right for my husband to reside in and have the beneficial use and enjoyment of any dwellinghouse and land occupied therewith (or any interest therein) forming part of the Trust Fund upon such terms as to the maintenance and repair of such dwellinghouse the payment of outgoings and expenses in respect thereof and the indemnity of my Trustees against any liabilities in connection therewith as shall be determined by my Trustees.

5.2  After the death of my husband my Trustees shall hold the Trust Fund for my daughter ME provided she survives me and my husband but if she shall have died before the death of such survivor of myself and my husband leaving a child or children living at the date of death of such survivor then such child or children (being a grandchild of mine) as shall attain the age of 18 years shall take by substitution and in equal shares if more than one the share of the Trust Fund that my said daughter would have taken had she attained a vested interest.

6. Notwithstanding the Trusts hereinbefore contained my Trustees (not being less than two in number) shall have the power at any time at their absolute discretion to advance the whole or any part of the capital of the Trust Fund to my husband for his absolute use and benefit.

It is clause 5.2 and clause 6 that seem to be in conflict although 6 does seem to imply it has to be both trustees for Dad to "take everything" ? But does that then come back to me on his death ? Can he blow it all or use it for his potential care ?

So far Dad has moved all monies from mums bank account (Approx £25,000) into what was the joint. This joint account is now in his name only. It holds the proceeds/profit from the sale of their previous property. (Approx £150,000) The current house is worth Approx. $450,000. He also did a SORN on his car (Approx £8000) and took over Mums car via the DVLA (Approx £12,000 but again I assume this is a "chattel" so nothing I can do) 

He is saying that everything is now his so his new will will be an equal 3 way split between myself and my two step siblings. 

I know I still stand to gain 1/3 or a reasonably substantial estate but it will be £40,000 "loss". There is also a still outstanding medical compensation claim outstanding that will potentially be anywhere between £20,000 to £100,000 and we are currently (paused) on that for Dad to sign the claim insurance documents following mums death (It was originally all in her name)/ This would have gone into her personal account but at the moment I understand this will go into Dad's personal account if he is still alive (He is 90).

I have also pulled the land registry and looking at it, despite them both saying it was tenants in common, I cannot see a Type A restriction applied to the property so I have a horrible feeling they may have actually been joint tenants. So I have the suspicion this will also be something else where I have no legal basis but he is trampling over what he knows full well were mum's wishes and intent.  

It is more the principal of the thing for me and I am sad to say he fully knows what Mum's wishes were and knows exactly what he is doing (or trying to do) 

maman

My DH and I have very similar wills to your late mum and step dad. My understanding is exactly as other posters have explained.

I'd suggest that you try talking to him and explain how the will works (effectively that he can only change, should he wish to, his share of the estate). If he doesn't believe you, and act accordingly, then I'd tell him that you'll ask a solicitor to put it in writing to 'help him understand as you wouldn't want him to commit fraud' unwittinglyv. 

AMILLIONDOLLARS

The Solicitors who drew up their Wills should have amended the Land Registry Deeds to Tenants in Common first as this formally splits the ownership percentages.  Once this had been confirmed by Land Registry, the Wills can could then be written reflecting what your Mother wanted to do with her percentage claim. 

Solicitors know and the law states that with ownership of Joint Tenants, the house goes automatically to the surviving partner and would have not been included in any Will requests.  If the Solicitors drawing up their Wills did not do the first stage of converting the ownership percentages, there is a very strong case of gross misconduct and should be reported to the Law Society.

Even though the Solicitor who drew up the Wills is retired the Law Firm should have a copy of the Wills in their archives as will as documentation confirming the Deed conversion and can also still act as Executors of the Wills. You have their details, give them a call.

Speaking from experience.  My Step-day had to sign the above document splitting ownership with my late mother. 50% belongs to him and the other 50% belongs to us her children, Mother left instruction that he live in the house as long as he wants.  If he wants to sell it, we get our 50% and he can do what he wants with his. We are ok with that!

Fortunately my Mother was a smart women, she put my name on her personal account, as her Executor I will be duly sharing this around my siblings when I finally carry out her wishes!

Land_Registry

I have also pulled the land registry and looking at it, despite them both saying it was tenants in common, I cannot see a Type A restriction applied to the property so I have a horrible feeling they may have actually been joint tenants. So I have the suspicion this will also be something else where I have no legal basis but he is trampling over what he knows full well were mum's wishes and intent.  

It is more the principal of the thing for me and I am sad to say he fully knows what Mum's wishes were and knows exactly what he is doing (or trying to do) 

Just a small point of clarity here as the registered information is not definitive as to whether the property was held as TIC or JTs.
Many believe that the presence of a form A restrictions means you are TIC but that is not the case. 

A form A can be applied for and can also be added by default when no information is provided as to how you wish to hold the property. 

Similarly you can draw up your wills as here and become TIC but never apply for a form A restriction. And of course you might apply for a form A but then things change but nobody applied to cancel it. 

So any ‘bad feelings’ should be aimed at actual documentary evidence re the wills/wishes and not the register alone re that point 

JayBirdUK

Thanks for all the comments they are much appreciated and have given me a little hope it may not be as bleak as I fear. 

Land_Registry Please be assured that any ‘bad feelings’ are aimed at what I thought had been family for the last 40 plus years and I appreciate the clarification of the Form A restriction.

I am going to try and arrange a family meeting and get their views on why they feel this is the way to proceed

Thanks again all