How can you find out the terms of a will that you may want to contest?

[erebus]

The inevitable 'merged' families problem!
I am 99% certain that the person concerned will have made a will. She passed away very recently.

How and where can I find out what that will states? Unfortunately, asking the DD of the deceased is not an option!

Tia

[melvinscomment]

@ erebus :- If you know who the deceased's solicitor was, or may be, you could ask them if they have a copy of the will, but I think they will only give you a copy if it is clear from the will that you are one of the beneficiaries.

[emsyj]

Once a will is admitted to probate, it is a public document and you can get a copy from the probate registry for a small fee. There should be information on entering a standing search a the probate registry on the court service website. Then you would be notified if the will is admitted to probate.

Sorry am a bit rusty on probate as not done it for a few years, but check on here for info www.hmcourts-service.gov.uk/cms/1211.htm

[Resolution]

You have to renew a standing search every 6 months. when I last did one it was I think £6, but may have gone up since then. You give in the name, address at death, and date of death I think.

I also think that it's only the executor who the solicitor can give the will to. They are the only one with legal authority.

[melvinscomment]

@ erebus :- I think emsyl and Resolution are both correct. What happens if the executor(s), who are unknown, decide not to apply for probate, I don't know!

[erebus]

Yes, that's the issue. I doubt for a moment the DD will apply for probate (and she is almost certainly an executor) if she doesn't need to.

My concern is that the DD is almost certain to be the sole beneficiary of the will, but others feel they have a right to a share of the proceeds.

I am trying to find out how we can address this in the absence of knowing who the will is lodged with!

[prh47bridge]

If the estate is big enough to be worth worrying about the executors will almost certainly need to apply for probate or letters of administration in order to administer the estate. Whilst this isn't necessary for all estates, it will be needed if the deceased owned any property outright or as tenants in common. It may also be needed to collect money from banks, building societies, etc., particularly if the amounts involved are significant.

[prh47bridge]

Just to add to that, if the deceased owned a property outright the DD will be unable to sell it or transfer ownership unless the executors get a grant of probate.

Do the others think they have been left something in the will? Or do they want to contest the will?

[erebus]

Contest, I believe.

Yes, the deceased did own a property outright by dint of inheriting it when her DH died 15 years ago, apparently without leaving a will. The whole thing doesn't affect me personally, at least, not materially but it has the potential to cause some real issues within the family.

I may start a new OP re the circumstances to get some opinions. But here it is!

Are you sitting comfortably?

B married H in 1928, 2 DSs were born, D and A.
H, the mother, died when the DSs were very young.
B remained a widow for many years during which time he bought his council house.
He then married S in 1962 (who had a DD from 'an accident', 'C'. C was 18 at the time)
S and B lived happily together (C stayed living with the grandparents who had housed S and her since 'the accident')
In 1996, B died apparently without a will (a moot point within the family as he was a very meticulous man!). S of course remained in the house.

Throughout this the original DSs, D & A, remained in close contact with B, S and C, for that matter. All was well.

Then S became elderly and frail. She entered a care home 15 months before she died, the fees being presumably originally met through pensions and possibly her DD (C, now a successful business woman). C 'did up' the house to rent it out to help with the fees. (Apparently cost £20k, for a 2 bedroom mid terrace ex-council house, but there you go!). C did not speak to either of the DSs (D and A, remember) about any of this.

S died very recently. The overwhelming feeling is that C will basically inherit the lot, though the fair thing to happen is for C, D and A to split the proceeds at least on the sale of the house, if not 'the estate', such as it will be, 3 ways, allowing for the money C has apparently paid out to renovate the property. All three could be considered 'children of the household'.

It won't be a vast amount of money, but in some ways, to D and A, it will represent an acknowledgement of there being 'a family before', that the whole thing didn't just begin with B's second marriage to S in '62. Remember, B had bought the house whilst a widow.

So that's the story.

And thanks to all who haven't weighed in with cries of 'mercenary!', or 'how awful, talking about the money like that!'. I guess they wouldn't, in 'Legal'!

[emsyj]

Are D and A adults and financially independent? They may well struggle to make out a claim if they are excluded from the will. Basically you can't contest a will for being immoral or unfair - only where you were financially dependant on the deceased and they have failed to make appropriate provision for you. That is very potted, but that is essentially the position.

It seems that you think B may have made a will but that this was concealed by S. On the whole, if you make a will you should make it known amongst family members/friends/people you trust that you have done so, and where copies can be found and where the original is stored. If B did make a will then it is possible that he told S about it and trusted her to deal with matters on his death. But goodness knows what you can do if she was dishonest about this. I don't have any suggestions on that one, but someone may come along with an idea.

The only thing that comes to my mind is to query what the value of B's estate was at the time of his death. Where there are children, a surviving spouse does not automatically inherit everything on intestacy. There is a limit (I think it has increased since I was doing this sort of work, but it used to be £125k a few years ago) and if the estate is worth more than this, the surviving spouse gets the first £125k (or however much the limit is at the time of death) and then a life interest in half the remainder (e.g. they would get the interest, but not the capital, for their lifetime). The rest is divided between the children (with further rules about dividing amongst grandchildren if one of the children has predeceased etc etc - doesn't seem that is relevant here).

So.... You need to work out how much roughly the estate was worth when B died and what the limit was then for a spouse to inherit on intestacy, then if there is an excess then take some proper advice (or get D and A to).

Is there no prospect of C sharing with D and A? If the will leaves everything to C, C is at liberty to make a post death variation to ensure D and A get a share.

Has the house been transferred into S's name? (I am assuming that, since he bought it as a widow, he purchased in his sole name - it is the normal position in my experience that where a couple is elderly, the house is in the husband's sole name - that is just 'the norm' from my experience). You can find this out by doing a search at HM Land Registry. If it has, then a grant of representation will have been necessary in B's estate (assuming that the house was in his sole name before his death) and there should be a declaration of the value of the estate on that grant (and you can get a copy of it from the probate registry). If they owned the house jointly, a grant may not have been necessary - but from what you say, my immediate guess would be that the house was likely to have been held in B's sole name.

Gosh that was a marathon... Does any of that help at all?? There is a bit more digging you can do I think. Find out who is actually the registered proprietor of the house.

[prh47bridge]

I'm afraid I don't think D & A will get very far here, especially if the estate is small. The question is whether S has made reasonable financial provision for them. No provision at all can be reasonable if they have adequate financial resources to meet their needs. The fact that B apparently didn't leave them anything doesn't enter into it, nor does the family's view of what is fair.

If they want to take this further they need to consult a solicitor who specialises in probate. Once they have all the details they will be able to provide proper advice.

[erebus]

Thanks, I will read in greater detail later.

The house is probably worth £150-175k, I'd say.

D & A were by no means financially dependent on B, or S (though, and I know this doesn't matter!- nor is C as she is probably 3 or 4 times better off than either D or A as a result of a fortuitous marriage!).

Can I ask, re 'dying intestate'- what does that mean? I thought it meant dying without an heir and without a will.

I guess S would be B's 'heir' as his surviving spouse if he didn't leave a will.

[emsyj]

Dying intestate means dying without leaving a valid will. You can still leave heirs!

Yes S would be one of B's heirs, but so would his children (depending on the value of the estate as explained inarticulately above!)

[prh47bridge]

Dying intestate means you haven't made a will. Under intestacy rules S would have inherited everything provided B's estate was worth less than £125k. As B died in 1996 it is far too late to launch an Inheritance Act claim relating to his death. Any claim will have to be against S's will.

[prh47bridge]

emsyj and I seem to be cross posting here!

[emsyj]

Is it technically an Inheritance Act claim prh47bridge? Genuine question, I have no idea - never did contentious probate work. If B's estate was not properly divided, would D and A need to use an IHTA claim to pursue it? And therefore be out of time?
(I miss private client work )

[erebus]

Sorry that I am skim reading this- I will study it in far greater depth tomorrow.

I checked the land registry and there is no record of tenure or value there, which is a bit interesting as I would have thought C (the DD) would have made sure the house was registered in her mother (S's) name if she was able to do that.

The story was 'there was no will' ( on B's death, 15 years ago) which we all assumed meant his surviving spouse automatically got the lot, which phr also says. Though the estate would've been worth more than £125k at the time!

[emsyj]

Just a thought, but if it would involve an Inheritance Act claim for D and A to take action to dispute the distribution of B's estate, does time start to run when a grant is taken out or at the date of death? I think the former, but would have to check. If no grant was taken out at the time (which is very possible) then there may still be something D and A can do here. I think if no grant was ever taken out in B's estate that there is still a live claim for D and A but am not 100% as I am out of date on this area of law and have not got any contentious probate experience.

So if you have checked the land registry, assuming you have done the correct search is the land unregistered? I don't know when compulsory registration started, but certainly it was in place when B died in 1996. So it is possible that no transfer has taken place, in which case C will have to get a grant in B's estate in order to deal with the property.

Sorry baby is crying, have to go but will check back tomorrow for progress on this! All very interesting!!!

[prh47bridge]

emsyj - If it was a genuine intestacy and D & A wanted to claim against the estate then that would be an Inheritance Act claim. However, if there was a will and whoever administered the estate deliberately ignored it that would be another matter. It would also be another matter if the intestacy rules were ignored.

erebus - If the estate was worth more than £125k then S should have received £125k outright. Half of any amount over £125k should have been split between the children. S would have had a life interest in the other half of the amount over £125k and on her death that would then be split between the children - it would not form part of her estate. A life interest means S could spend any interest earned by that part of the estate and could make use of any assets included but could not dispose of the assets/spend the capital. So if B's estate was worth, say, £200k, S should have received £125k and £37.5k should have been split between the children. S would have had a life interest on the remaining £37.5k but, on her death, that £37.5k should still be available to split between the children.

When considering the value of B's estate a lot may depend on how the house was owned. If B and S were joint tenants the house would have become S's automatically when B died and would not have formed part of B's estate. If they were tenants in common B's estate would have included half of the house. So if you have assumed that B's estate included half of the house that may be incorrect.

[prh47bridge]

The clock starts running on grant. So yes, if there has been no grant they may still be able to bring a claim. Having said that, we would then be back to the question of whether B made reasonable provision for them. As they were already adults and presumably financially independent I doubt a claim would succeed but D & A ought to seek proper advice if they want to go down this route.

[emsyj]

Not if B was intestate though as OP says B's estate would have been over the £125k threshold at the time - so they should have got something from B's estate in accordance with the intestacy rules on B's death by virtue of entitlement under the intestacy rules - nothing to do with the Inheritance Act and irrelevant whether B made reasonable provision for D and A etc.

What I was asking was whether a claim for their share under the intestacy rules would have to be framed as an Inheritance Act claim? I didn't think so, but am prepared to be corrected as I don't have any experience on this area!

[Resolution]

Looks like there is no inheritance act claim, though you ought to go back if you think it's a possibility that B's estate wasn't properly carved up under the intestacy rules.

There was probably a solicitor involved though, and it would be up to those alleging maladministration to prove their case.

I 'spect it's a case of tough luck, with everyone reading this rushing off to make a will.

[prh47bridge]

Sorry, I thought I'd explained that in my 23:12 post.

If they didn't qualify for anything under the intestacy rules but thought they should receive something anyway that would be an Inheritance Act claim. So if B's estate was under £125k (e.g. because the house was actually owned as joint tenants and therefore was not part of his estate), D & A would have to make an Inheritance Act claim if they wanted any of it.

On the other hand, if the estate was over £125k as the OP thinks and D & A did not receive their entitlement that would not be an Inheritance Act claim.

[Resolution]

Must make an inheritance act claim within 6 months of probate being granted.

[emsyj]

Why do you say there was probably a solicitor involved (presumably in B's estate) Resolution? I have seen a number of times the situation where one spouse dies and the other one just carries on living in the house and goes about their business, with nothing being sorted out from a formal perspective until, years down the line when the survivor dies, there is actually a need to sort out the paperwork (e.g. in order to sell a property).

I have a hunch (could be wrong, of course!!!) that the house was in B's sole name, still is now, and that no grant was ever obtained in B's estate.... I am dying to know if I am right!

It would be worthwhile to do a search for any grant of representation in B's estate.

[erebus]

Again, I am back and apparently cherry picking from the discussion being had (and I really do appreciate everyone's input!). I am going to sit down a bit later and go through it all in detail, but, just for now, my Q:

How does one do a search for a grant of representation?

I too am thinking that S just went on living in the house after B died. I was interested to see that the house hadn't been registered in S's name in 1996 (at least, the basic search I did in the Land Registry had no record) which is what I would have expected C to make sure had happened. She didn't accrue her wealth purely through a good marriage!

One last Q for now- how soon after a death would one expect there to be an application for probate, IF one is sought?