Will Problems

DrDeejUK

My step-dad is in hospital at the moment after suffering a mild stroke and after scans it was discovered he has Stage 4 Lung Cancer. Given that he probably doesn't have much time left (still waiting for news from oncologist) he has been looking into the will. First of all the property he owns is in both his and my mothers name. However, he has now changed his will without telling my mother so no idea how the will has been reworded. Now, I am his only step-son but he also has two daughters and a son from a previous marriage. His intentions when he died was that everything would pass down to my mother and when she died everything (property, cash etc) would be split equally between the children. Now I am quoting directly from the will below as is written...

2 (a) I appoint my wife aforesaid to be sole Executrix of this will and I give my property both real and personal unto her absolutely provided that if my wife should pre-decease me then the following provisions of this will shall have effect.
(b) I appoint my daughter [eldest daughter] and my son [eldest son] to be executors and trustees (hereinafter called "my executors") of this my will.

3 My executors shall hold the whole of my estate on trust either to retain or sell it and
(a) To pay all debts and Executorship expenses and all taxes and duties payable because of my death
(b) To divide the residue as follows [goes on to list all four children's names as having a quater share each]...


Now, something doesn't seem right here. Does my mother get complete rights to the house after he has died or do eldest daughter and eldest son get a say in what happens next? Any info or advice appreciated.

Flugelhorn

If your mother survives him then you read no further than (2a) ie she gets all the property and is executrix. The other factors only come into play if your mother had predeceased him

Have you checked how they own the property ? is it joint or tenants in common?

turnitround

DrDeejUK said:

My step-dad is in hospital at the moment after suffering a mild stroke and after scans it was discovered he has Stage 4 Lung Cancer. Given that he probably doesn't have much time left (still waiting for news from oncologist) he has been looking into the will. First of all the property he owns is in both his and my mothers name. However, he has now changed his will without telling my mother so no idea how the will has been reworded. Now, I am his only step-son but he also has two daughters and a son from a previous marriage. His intentions when he died was that everything would pass down to my mother and when she died everything (property, cash etc) would be split equally between the children. Now I am quoting directly from the will below as is written...

2 (a) I appoint my wife aforesaid to be sole Executrix of this will and I give my property both real and personal unto her absolutely provided that if my wife should pre-decease me then the following provisions of this will shall have effect.
(b) I appoint my daughter [eldest daughter] and my son [eldest son] to be executors and trustees (hereinafter called "my executors") of this my will.

3 My executors shall hold the whole of my estate on trust either to retain or sell it and
(a) To pay all debts and Executorship expenses and all taxes and duties payable because of my death
(b) To divide the residue as follows [goes on to list all four children's names as having a quater share each]...


Now, something doesn't seem right here. Does my mother get complete rights to the house after he has died or do eldest daughter and eldest son get a say in what happens next? Any info or advice appreciated.

If the will has been changed and you dont know how it has been reworded then 2 and 3 may now be different.

DrDeejUK

Flugelhorn said:

If your mother survives him then you read no further than (2a) ie she gets all the property and is executrix. The other factors only come into play if your mother had predeceased him

Have you checked how they own the property ? is it joint or tenants in common?

You are probably right but I've been told if my mother dies after him then I get everything and the other siblings get nothing. That doesn't sound right to me. As far as current ownership goes the property is in joint names (my step-dad and my mother).

Flugelhorn

DrDeejUK said:

Flugelhorn said:

If your mother survives him then you read no further than (2a) ie she gets all the property and is executrix. The other factors only come into play if your mother had predeceased him

Have you checked how they own the property ? is it joint or tenants in common?

You are probably right but I've been told if my mother dies after him then I get everything and the other siblings get nothing. That doesn't sound right to me. As far as current ownership goes the property is in joint names (my step-dad and my mother).

what happens if your mother dies after step dad totally depends on her will not his  - if she has inherited everything then she can leave it to whoever she likes. or if she doesn't make a will it goes to her next husband or children according to intestacy 

DrDeejUK

Flugelhorn said:

DrDeejUK said:

Flugelhorn said:

If your mother survives him then you read no further than (2a) ie she gets all the property and is executrix. The other factors only come into play if your mother had predeceased him

Have you checked how they own the property ? is it joint or tenants in common?

You are probably right but I've been told if my mother dies after him then I get everything and the other siblings get nothing. That doesn't sound right to me. As far as current ownership goes the property is in joint names (my step-dad and my mother).

what happens if your mother dies after step dad totally depends on her will not his  - if she has inherited everything then she can leave it to whoever she likes. or if she doesn't make a will it goes to her next husband or children according to intestacy 

Well, from what I understand now the house is being put into a trust for the children so I'm not sure how that changes things.

RAS

There are several ways this could be interpreted. Assuming England or Wales?

But first you really need to know whether your mother and stepfather own the house as joint tenants or tenants in common, both being ways to own the house jointly.

It's not unusual for couple to own as tenants in common, then half the house goes to the children with a life interest trust allowing the other spouse to live there rent free until they die or sell (the rules of the trust depend on what is in the will).

Then when the second spouse dies, the other half is dealt with in line with their will.

One of the issues with mum and step-dads' old arrangement was that if mum remarries, it invalidates her will and everything could go to her new husband. Or she needs care and the whole value of the house is used to pay the fees. Or mum could re-write her will in favour of the local cat's home, or just yourself.

The life interest trust protects half the value if she remarries or goes into a care home. What you don't know of course is if step-dad has left his half in trust to his children and step-children, or just his children, or the dog's home.  

DrDeejUK

RAS said:

There are several ways this could be interpreted. Assuming England or Wales?

But first you really need to know whether your mother and stepfather own the house as joint tenants or tenants in common, both being ways to own the house jointly.

It's not unusual for couple to own as tenants in common, then half the house goes to the children with a life interest trust allowing the other spouse to live there rent free until they die or sell (the rules of the trust depend on what is in the will).

Then when the second spouse dies, the other half is dealt with in line with their will.

One of the issues with mum and step-dads' old arrangement was that if mum remarries, it invalidates her will and everything could go to her new husband. Or she needs care and the whole value of the house is used to pay the fees. Or mum could re-write her will in favour of the local cat's home, or just yourself.

The life interest trust protects half the value if she remarries or goes into a care home. What you don't know of course is if step-dad has left his half in trust to his children and step-children, or just his children, or the dog's home.  

There are joint tenants. However since my original post it seems he's has changed his will and put his estate in a will trust. I didn't even know he could do that if my mother is a joint tenant.

Flugelhorn

I think he could have made it TIC and then left his "half" to the children in trust

RAS

If it was a joint tenancy, then your step-father can sever the tenancy  (make it tenants in common) unilaterally, but he has to inform your mother.

If he hasn't severed the tenancy, then even if he leaves half the house to the children, it makes no difference because he doesn't have half to leave. We've seen that happen here before.

DrDeejUK

RAS said:

If it was a joint tenancy, then your step-father can sever the tenancy  (make it tenants in common) unilaterally, but he has to inform your mother.

If he hasn't severed the tenancy, then even if he leaves half the house to the children, it makes no difference because he doesn't have half to leave. We've seen that happen here before.

So, let me get this right. If my mother doesn't agree to sign her half of the house back to him then whatever provisions and trusts he has set up in his new will are meaningless. Is that correct?