Contesting a will

longwalks1

Asking on behalf of a colleague, as many of you will recognise my username as my partner has just completed IHT400 and probate by herself, after many headaches we are now in the probate queue.

my colleague (call him ‘X’) father has recently passed, leaving 2 children (one being ‘X’ from work).  About 18 years ago ‘X’s brother took over mortgage payments from dads house after their dad ran into financial difficulties.  X wasn’t told of the struggle, or offered in to help out financially or to take part ownership of dads house.  He’s upset that he was left out. 

Now his dad has passed, X has been told he’s been left 1/6th of the estate (the fathers house) as the rest is in his brothers name who took over the mortgage 18 years ago.  The figure quoted is 1/6th of the value of the house, 18 years ago.  The house has been extended since the brother took over financially, making a current valuation, pre extension difficult. 

Has ‘X’ got any grounds to contest the will?  I know a very difficult question, but thank you all in advance 

Brie

Was the house still 100% in father's name?  Or had he "sold" it to other son?  Just because someone is paying the mortgage doesn't mean they own the house. 

If it's 100% in father's name then distribution should be as stated in the will which might be 50/50 or all for one and none for the other.  If he "sold" it then it's not part of the inheritance.  

If the will states brother bought 5/6th of the house and that X gets 1/6 then I'd say that's a current value so the value from 18 years back is immaterial.  

But someone brighter than me will be along in a bit and give proper advice.  

DE_612183

Does the will specifically state 1/6th?

If so I would suggest that this would have been his fathers wish?

Are you saying they have been left 1/6th of the value of the house 18 years ago ( ie house was worth £180,000 and he's been left a bequest of £30k ) or 1/6 of the total estate as of today?

msb1234

Has X actually seen the will, or has someone (his brother?) told him this is what it states? X can download a copy of the deeds for £3 which should tell him who the owners of the house are. 

TBagpuss

First step is that X would need to see what the will actually says, and possibly to clarify whether there are other relevant documents - e.g any formal agreement between dad and brother and what the deeds of the house say. It may be that whoever told him he would get only 1/6 of the previous value is mistaken.

However, f what he has been told is correct then it doesn't sound very likely that he would have grounds for contesting the will.

A will can be contested if there is an allegation that the testator was subjected to undue influence or coercion, or lacked mental capacity to make a will, or  that he did not know or did not understand what he was signing, or where there is an allegation of fraud or forgery.
On the face of it, it doesn't sound as though your friend is claiming that any of those things have happened, simply that he is upset his dad didn't talk to him, as well as to his brother, when he was in financial difficulties and that dad has / may have made a will which takes account of the help his other son provided. 

It's also possible in some situation to make a claim against someone's estate where you consider that the will fails to make reasonable provision for you, however, in the case of an adult child, is is not generally unreasonable for a parent to not leave an adult child anything, or to leave different amounts to different children, a claim of this kind would normally only succeed if the adult child was financially dependent on the parent when the parent died.

It sounds as though X's bereavement is very recent,  hopefully once the process of getting probate begins  he will be able to speak to the executors and/or get a copy of the will to see what the situation is.

Exodi

TBagpuss said:

First step is that X would need to see what the will actually says, and possibly to clarify whether there are other relevant documents - e.g any formal agreement between dad and brother and what the deeds of the house say. It may be that whoever told him he would get only 1/6 of the previous value is mistaken.

However, f what he has been told is correct then it doesn't sound very likely that he would have grounds for contesting the will.

A will can be contested if there is an allegation that the testator was subjected to undue influence or coercion, or lacked mental capacity to make a will, or  that he did not know or did not understand what he was signing, or where there is an allegation of fraud or forgery.
On the face of it, it doesn't sound as though your friend is claiming that any of those things have happened, simply that he is upset his dad didn't talk to him, as well as to his brother, when he was in financial difficulties and that dad has / may have made a will which takes account of the help his other son provided. 

It's also possible in some situation to make a claim against someone's estate where you consider that the will fails to make reasonable provision for you, however, in the case of an adult child, is is not generally unreasonable for a parent to not leave an adult child anything, or to leave different amounts to different children, a claim of this kind would normally only succeed if the adult child was financially dependent on the parent when the parent died.

It sounds as though X's bereavement is very recent,  hopefully once the process of getting probate begins  he will be able to speak to the executors and/or get a copy of the will to see what the situation is.

I spent a lot of time helping my stepfather update his will last year (I'm not a major beneficiary so no real conflict of interest) as he intended to disinherit some of his children who had not made any effort with him for the past few decades, and as part of this, I got to spend a lot of time with a will writing solicitor.

@TBagpuss pretty much has it spot on and they mentioned pretty much everything he did - which are the grounds a will can usually be contested on (in my stepfathers circumstances, it was ensuring his will could not be unfairly contested).

I think the scenario that the dad decided to leave the part of the house in which the brother took over mortgage responsibility for sounds reasonable to a layperson. I don't think mental capacity grounds or the premise the father did not understand the will do not apply here (unless you have evidence to the contrary).

Furthermore, I don't think there is evidence to show that any coercion or undue influence took place - even if the brother assisted with the creation of the will. Coercion is a very serious thing to allege (it is the criminal offence of fraud) and the evidence requirement is extremely high. And as above, the content of the will and the events surrounding it seem reasonable enough.

The provision ground, as @TBagpuss says usually applies to children who are financially dependent on the deceased. It doesn't sound like that applies here.

Unfortunately, you can't contest a will just because you think it's unfair. Wills don't need to be fair, rich old guys can disinherit their adult children and leave their entire estate to their hot new 21 year old wife, if that is their choice.

That said, at most I'd ask to see a copy of the will to ensure that it is not being interpreted incorrectly. "1/6th of the property value in 2005" sounds like an unlikely term so I expect it has been expressed as either a cash value (whereby there would be no contest) or a fixed percentage of the house (whereby you could challenge the brothers interpretation that should apply to the value in 2005). Hopefully it's not unnecessarily unclear by mentioning both... I'd think long and hard on this as solicitors will have no problem swallowing the whole estate by arguing it out in court.

theoretica

I think it will be vital to unpick what is a matter for the will, and what was bought by the brother long ago  - if the property was all or partly in the brother's name then it was not dad's to leave in his will.  Did brother own 2/3 of the property so only 1/3 was dad's to leave?  Or was full ownership in brother's name with a 'debt' to dad to be repaid on his death?  Does the will mention the extensions?

Getting a current value for the property as though the extension had not been done should be perfectly possible - ask a RICS valuer if they could value as though X had not been done, but maintenance had and explain why - probably worth paying for with both brother's agreeing on the request.