Unfair will, can I contest upon death

Flugelhorn

funnymonkey said:

Thank you for your messages, really helpful. After my mum died the larger house was put in a trust, it has now been more than 7 years and it is being rented out and my dad receives a rental from it.
Both my dad, myself and my brother live in England.
Thank you

I suppose it depends what the terms of the trust are 

funnymonkey

Keep_pedalling said:

If the house is in trust it does not form part of his heritable estate so you have hope of any claim. Whether having it in trust protects its from IHT will very much depend on if it was put in trust more than 7 years or not. Even if it was 7 years ago if he still has a beneficial interest in it (receiving rent for instance) it will still form part of his estate for IHT purposes. Trusts are also subject to some pretty hefty taxes in their own right so I very much doubt whether your brother is going to get a large tax free inheritance.

Is the 4 bed house rented out? If so who gets the income?

Thank you for your detailed explanation.
My father recieves a monthly rental income from it.
Thank you

Keep_pedalling

funnymonkey said:

Keep_pedalling said:

If the house is in trust it does not form part of his heritable estate so you have hope of any claim. Whether having it in trust protects its from IHT will very much depend on if it was put in trust more than 7 years or not. Even if it was 7 years ago if he still has a beneficial interest in it (receiving rent for instance) it will still form part of his estate for IHT purposes. Trusts are also subject to some pretty hefty taxes in their own right so I very much doubt whether your brother is going to get a large tax free inheritance.

Is the 4 bed house rented out? If so who gets the income?

Thank you for your detailed explanation.
My father recieves a monthly rental income from it.
Thank you

Which means for IHT purposes it still forms part of his estate, and presumably your brother is the ultimate beneficiary of the trust because he can’t leave it in his will because the trust is the legal owner. Mind you people often get things horribly wrong with this sort of trust.

DippySkippy

I dont see you can challenge the Will - think yourself lucky you don't have the hassle of a Trust to deal with which restricts what you can do. Using a Trust to try and avoid care home fees is morally dubious and in practice not a great idea and council subsidised care homes are AWFUL - better to have the money under your control.

Marcon

funnymonkey said:

Can anyone please help as I feel that I am being treated unfairly in my father's will.
Some years ago my mother died leaving everything to my dad which includes his 2 bed house and a much larger , 4 bed house which has been placed in a trust.
I have found out that upon death of my dad my brother who in my dad's eyes can't do anything wrong will get the much larger house protected from tax or care home fees as it's held in a trust
 The much smaller house approx value £220k that would be left to me wouldn't have those protections so it could potentially be sold off to pay for care home fees and taxes.

Would this be considered a valid claim?
Thank you 

Wills, like parents and life generally, don't have to be fair. You say you 'found out' - I wonder how? Short of actually seeing the signed will, you're basing your distress on hearsay, which is never the most reliable source of information, particularly in relation to wills - and of course wills can always be changed while the testator is alive and of sound mind.

What you've described sounds pretty elaborate and (even if what you believe is actually accurate) may not achieve the desired objectives, whatever those may be.

Can anyone help you? Surely the only person who can do that is your father, if you're prepared to have an awkward conversation with him. Otherwise you can claim all you like once he dies, but the chances of a claim succeeding because 'it's not fair!' are slim to zero, assuming you are not financially dependent on your father.

poseidon1

funnymonkey said:

Keep_pedalling said:

If the house is in trust it does not form part of his heritable estate so you have hope of any claim. Whether having it in trust protects its from IHT will very much depend on if it was put in trust more than 7 years or not. Even if it was 7 years ago if he still has a beneficial interest in it (receiving rent for instance) it will still form part of his estate for IHT purposes. Trusts are also subject to some pretty hefty taxes in their own right so I very much doubt whether your brother is going to get a large tax free inheritance.

Is the 4 bed house rented out? If so who gets the income?

Thank you for your detailed explanation.
My father recieves a monthly rental income from it.
Thank you

You have not stated what were the original terms of the trust after your father dies.

You have stated he gets the income presumably for life but since it was created by your mother it would have been usual for her then to provide the trust fund reverts to her children absolutely in equal shares. It would have been unusual for a modern trust of this form, to give the life tenant ( your father ) power to vary who gets  the trust fund on his death. Ordinarily that event would be set in stone from outset.

 I assume this trust was originally established under the terms of your mother's Will . Have you actually read the Will for yourself?  If not, and you can let us see the precise terms, it maybe your father has no power to do anything at all about the ultimate destination of the trust fund on his death and this maybe the case even if he is sole trustee of the settlement.

Incidentally since he has a life interest in the trust property, it will be liable to IHT on death and since it is the more valuable of the two properties, it will get the lion's share of the IHT bill whilst the smaller property receives full benefit of the Residence nil rate band.  At this point, I can see no way he could rewrite your mother's trust in the way you have outlined, to produce an alternative IHT outcome.

More detail of your mother's Will please.

badmemory

One thing you haven't mentioned is are you full brothers.  And another where did your mother get the other house from.

Marcon

poseidon1 said:

funnymonkey said:

Keep_pedalling said:

If the house is in trust it does not form part of his heritable estate so you have hope of any claim. Whether having it in trust protects its from IHT will very much depend on if it was put in trust more than 7 years or not. Even if it was 7 years ago if he still has a beneficial interest in it (receiving rent for instance) it will still form part of his estate for IHT purposes. Trusts are also subject to some pretty hefty taxes in their own right so I very much doubt whether your brother is going to get a large tax free inheritance.

Is the 4 bed house rented out? If so who gets the income?

Thank you for your detailed explanation.
My father recieves a monthly rental income from it.
Thank you

You have not stated what were the original terms of the trust after your father dies.

You have stated he gets the income presumably for life but since it was created by your mother it would have been usual for her then to provide the trust fund reverts to her children absolutely in equal shares. It would have been unusual for a modern trust of this form, to give the life tenant ( your father ) power to vary who gets  the trust fund on his death. Ordinarily that event would be set in stone from outset.

 I assume this trust was originally established under the terms of your mother's Will . Have you actually read the Will for yourself?  If not, and you can let us see the precise terms, it maybe your father has no power to do anything at all about the ultimate destination of the trust fund on his death and this maybe the case even if he is sole trustee of the settlement.

Incidentally since he has a life interest in the trust property, it will be liable to IHT on death and since it is the more valuable of the two properties, it will get the lion's share of the IHT bill whilst the smaller property receives full benefit of the Residence nil rate band.  At this point, I can see no way he could rewrite your mother's trust in the way you have outlined, to produce an alternative IHT outcome.

More detail of your mother's Will please.

Not clear that's the case - OP has only said 'After my mum died the larger house was put in a trust...', which doesn't necessarily mean she set the terms of the trust. Could have been the father who created the trust. There's not much point in debating the matter, though, or asking for more information - it won't answer OP's original question.

funnymonkey

My mother and father bought the 2nd home when they were together and before my mother's end of life transferred everything to my father.
My brother (we are full brothers) is closer to my father as he has no children has time whilst I have a family have always focussed on my children.
Without sounding distant which it is not the case I see manipulation on his part over the years.
He is involved in helping set up the trust and has solicitors details in the event of fathers passing.
My main concern is should my father needs to go into a home then unless I'm mistaken my father's smaller property will be seized to pay fees so I could loose out as the other property will remain untouched?
I would be more than willing for 50% of the care home fees to be taken from each property as would be fair and just.
Thank you 

Marcon

funnymonkey said:

My mother and father bought the 2nd home when they were together and before my mother's end of life transferred everything to my father.
My brother (we are full brothers) is closer to my father as he has no children has time whilst I have a family have always focussed on my children.
Without sounding distant which it is not the case I see manipulation on his part over the years.
He is involved in helping set up the trust and has solicitors details in the event of fathers passing.
My main concern is should my father needs to go into a home then unless I'm mistaken my father's smaller property will be seized to pay fees so I could loose out as the other property will remain untouched?
I would be more than willing for 50% of the care home fees to be taken from each property as would be fair and just.
Thank you 

The timescale is getting a bit foggy here. You said the trust was set up after your mother's death, but are now saying your brother '...is [as opposed to 'was'] involved in helping set up the trust...' - but that is probably entirely beside the point, so perhaps focus on what you are actually asking.

Whether the smaller property would be 'seized to pay fees' will depend on whether there are other funds available IF your father needs to go into a home - and it's a very small minority of individuals who actually go into residential care - and then only to the extent that the fees can't be met from your father's other assets, such as savings or pension income.

funnymonkey said:

I would be more than willing for 50% of the care home fees to be taken from each property as would be fair and just.

But it's not your decision; these are your father's assets and however unfair you feel it is, what he does with them is up to him. Maybe you could raise the subject in a slightly less 'head on' fashion by bringing your own children into the conversation, rather than making the conversation about you personally? It's a delicate call, but unless you have that conversation and see what he has to say, you simply have to accept that what will be will be - and the reality is that it may not be what you are clearly fearing will happen.