Unfair will, can I contest upon death

Pollycat

Marcon said:

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. 

Absolutely. 
Whoever owns the assets decides how to distribute them after death by making a will 
There is no inheritance until someone dies.

poseidon1

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 

Without sight of what the original trust document states and who were the original named beneficiaries thereof after your father's eventual death , i am still none the wiser with regard to your predicament.  Have you ever seen the trust document and viewed its originally  terms and conditions? 

If as you say your brother was the architect behind its creation, and it was specifically designed to take it out of contention for care home fees purposes, then you have no legal cause of action ( not withstanding the effect on your inheritance), but the local authority might have a case although with in excess of 7 years elapsed they would need to adduce specific evidence that this was the original motive behind the trust.  However, if IHT is in point on your father's collective assets including the Trust on his eventual death, his will would have to specifically state that the trust of which he is life tenant, passes to the remainderman ( your brother) Iht free.

Your father's will  and its consequences ( which you can do nothing about ) is only part of the picture. Certainly if he  eventually went into a care home, the local authority would have 1st dibs on the rent from the 2nd property but then recourse to his home ( your inheritance ) to meet any continuing shortfall until his death. Worse case scenario this could indeed wipe out your inheritance with no avenue of recourse for you. 

English Law, unlike many other jurisdictions in Europe,  is rare in that it does not require a testator to be equal handled in the treatment of testamentary gifts to their children up to and including cutting out a child entirely.

As intimated by Macron's post, approaching this whole matter from the viewpoint of the effect on your father's grandchildren ( ie potentially denying them a legacy from grandfather's estate), may result in a more sympathetic hearing. Would it help if your father were to introduce your children as beneficiaries of the property trust along side your brother? 

badmemory

There is of course no guarantee that he will actually need to go in a care home.  Most do not.

Linton

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 

Property is not "seized" to pay care home fees.  The council simply say that they wont fund someone who has sufficient assets to pay for themselves. Where the money comes from is then up to the person concerned or, if not capable, their PoA. Depending on the terms of the Trust the money could come from there. The council are not involved.

Unless you have PoA you have no authority in the making of the decision so your willingness is immaterial.  But if you do have PoA you can only act on the basis of the donor's best interest, not yours.  

Mands

Pollycat said:

Marcon said:

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. 

Absolutely. 
Whoever owns the assets decides how to distribute them after death by making a will 
There is no inheritance until someone dies.

And, in England, there is no requirement for a will to be 'fair'. It's perfectly legal to leave 1% to one child and 99% to another. There would be no basis to challenge the will. 

The solution, as challenging as it might be, is to have a serious conversation with your father now pointing out the inequality. He could then make a new will if he wanted.