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Last Will and Testament Interpretation

(25 Posts)
RichPetunia Sat 22-Dec-12 16:06:42

A member of my family has left a will that is really open to interpretation. His family had been told that his estate would be left to his sister on the understanding that everyone else in the family would be taken care of (my uncle told this to my sister). Now that my uncle has passed away, my auntie has said that he left his estate to her only. I have received a copy of the will today: "I give my entire estate to my sister XY, in the event of my said sister failing to survive me I give the whole of my estate to her husband XY to be used for the long-term benefit of the family".
As a member of the family, do we have cause to protest that the estate is not being shared? Also my auntie's husband who was named in the will was also a witness to it and both he and my aunt had power of attorney over my uncle's affairs.
I would be grateful for your feedback.

RedHelenB Sat 22-Dec-12 16:21:06

As I read it your auntie is alive therefore all the money goes to her.

littlemisstax Sat 22-Dec-12 19:19:26

I'm not a legal bod (you need Mumblechum) but my understanding is that if a potential beneficiary (ie your auntie's husband) is a witness then the will is invalid. My interpretation of the clause as you've posted is the same as RedHelen's - if the will is valid, then the estate passes to your auntie to do with as she wishes.

I'd suggest you take the will to a solicitor to see if it is valid.

Collaborate Sat 22-Dec-12 20:33:15

IIRC there is something called a secret will, in which the beneficiary is being told that they are receiving something but they must do something particular with it. Mumblechum should be able to set me right.

RichPetunia Mon 24-Dec-12 18:21:23

Many thanks for all responses so far. Can anyone please tell me how I would be able to contact Mumblechum so that I could ask for her opinion? Thanks in advance.

emsyj Mon 24-Dec-12 23:34:09

If a beneficiary is a witness, the gift to that beneficiary fails - it does not invalidate the Will in its entirety.

Was the Will professionally drafted or is it a home-made one? It would be impossible to advise on either its validity or its contents on the basis of repeating a single line on here. You really need to speak to someone in person. If it was professionally drafted, I would initially contact the person who prepared it.

Collaborate refers to a 'Secret Trust' - where on the face of the Will, there is an outright gift to an individual but that individual has been told during the testator's lifetime that the gift is to be used for a particular purpose. You would need specialist advice to see whether this could apply here.

Was anyone in the family financially dependent on the deceased? If so, there may be a statutory claim against the estate for appropriate provision.

RedHelenB Tue 25-Dec-12 07:05:14

Bear in mind that if you challenge it it is likely to be upheld if the wishes are clear, even if it is wrong on a technicality (Know people who have done this) Is the auntie the nearest relative?

ItsaTIARA Tue 25-Dec-12 07:39:13

Was anyone else in the family financially dependent on your uncle during his life? They could probably make a successful claim. But you need actual legal advice, and to ask aunt what she intends to do with the money - then negotiate - nobody wants to go to court.

DeafLeopard Tue 25-Dec-12 07:43:52

Agree you need Mumblechum. Have a look in small ads for Marlow Wills, she is brilliant.

Even if the will fails, then intestacy rules apply so the sister of deceased would inherit anyway I believe.

emsyj Tue 25-Dec-12 11:33:47

Who would inherit on an intestacy depends on who else survives.

As far as I know from chatting to Mumblechum on here, she does not offer probate services, only Will drafting. I would be astonished if she were willing to give more detailed advice than I have on the basis of what the OP has set out above - she is a former lawyer (same as I am) and will be more than aware that the information set out is too scant to say much more.

If you want to contact Mumblechum directly, you can do a search for her posts on here under 'Advanced Search' and then click to private mail her.

RichPetunia Tue 25-Dec-12 12:00:49

The will was written on a do it yourself will kit, without the benefit of having a lawyer present. My uncle had no-one dependent on him but his mother is still alive. He had given his sister a substantial amount of money two years ago so that his mother would be looked after.
The family he leaves behind are is mother, a brother and sister, so not a large amount of people at all. My aunt has POA over her mother's affairs.
Again, thanks for information received so far.

RichPetunia Tue 25-Dec-12 12:03:06

Also, the information quoted in the original post is the entire content of the will in it's entirety.

emsyj Tue 25-Dec-12 13:08:48

Ah, right. Seriously, you need to go and see someone and take the Will with you. I hate home made Wills - this is why people like Mumblechum exist, to make sure people's wishes are carried through properly after their death. For the benefit of anyone reading (rather than aimed at the OP), I can tell you that the cost of a professionally drafted Will is always always cheaper than the cost of sorting out a poorly drafted one.

I think you will have some technical difficulties with the Will, but will let Mumblechum discuss that. I have done Wills and probate in a professional capacity but not for about a year or so (have had a slight career change) and I would not want to advise on the validity of a Will that is drafted in its entirety as you set out above. It is missing a number of things that a professional Will would normally have present, and I think the probate registry will have an issue in particular with the lack of a formal attestation clause and also lack of a revocation clause at the beginning - also there is no appointment of an executor, so even if the probate registrar admits the Will and accepts it as valid, it will be an application for letters of administration with Will annexed, not a probate application - so you will need to follow some technical steps to show the entitlement of the person making the application to take out the grant (normally it will be the person who has the residuary entitlement, here on the face of it the Aunt, who can apply for the grant and administer the estate).

If you take my advice (which of course you don't have to), you should go and see a solicitor and pay for an hour of their time to give you proper face to face advice. You may well also need some help with getting the grant of representation to allow the estate to be administered. Generally, probate is something that an unqualified person should be able to do on their own with the help of the guidance and forms available and I would usually say if there are no inheritance tax issues then go ahead and do it yourself - but on this occasion, I would get some help - even if it's just an initial consultation and/or help getting the actual grant to enable you to access the deceased's assets.

Will Inheritance Tax be an issue here do you know?

RichPetunia Tue 25-Dec-12 13:43:45

emsyj - Seemingly inheritance tax is not an issue - I have a copy of probate and £798,000 was declared for probate. However, after all debts etc there is £322,000 (my aunt had told me £200,000 - I only found out it was more when I received a copy of the paperwork). There is also property that has been sold for £1.4 million but (I have been told) is outwith inheritance tax because it was part of my uncle's pension.

RedHelenB Tue 25-Dec-12 18:06:56

Do you think your aunt WON'T use any of the money to help her mother? Does your mother have money of her own?

RichPetunia Tue 25-Dec-12 20:09:33

I think she will use some of the money to look after her mum (my grandmother), as she has looked after her very well to date.

JustFabulous Tue 25-Dec-12 20:17:11

I don't understand what you issue is.

He left his money to his wife. If his wife died he wanted the money shared out within the family. She hasn't died so it is all hers.

OldLadyKnowsNothing Tue 25-Dec-12 20:23:23

Not his wife, his sister.

Xenia Tue 25-Dec-12 20:40:29

When you say that is the whole will is that really so? Does it not even have a headinglike "Will"? Perhaps type the complete whole of it here including signature bits without real names so we can see.

It sounds like as long as properly signed etc it may well be valid and goes to the person named but if there were agreement it might go to someone else (very very very hard to prove) then that secret earlie agreement might (I doubt it) be a possibility although there are no dependants so I doubt that is likely.

So the simple answer is that it may well be valid. Most wills you buy ready made in WH Smith etc have the rght bits such as appointment of executor.

Do you think it could be a fake? Have you looked at the signature against other examples.

Also you used the word "outwith" which is often used only by Scots. If that is so you will need to speak to Scots not English lawyers by the way. Is it England?

JustFabulous Tue 25-Dec-12 21:18:34

Sister, but what I said still stands.

RedHelenB Wed 26-Dec-12 08:22:10

I think it is obvious what your uncle wanted & I personally wouldn't contest it if aunt loves her mum & will look after it. In all likelihood the money may well be spent on care fees & women often outlive men so unlikely that uncle will get it & not use it for family, which as i understand it is the fear.

RichPetunia Wed 26-Dec-12 08:22:27

Thank you all for the time you have taken to consider my dilemma and to suggest solutions. After consideration, I am going to approach my aunt (the deceased's sister) direct because we know for a fact that my uncle wanted everyone in his family to benefit from his estate. If that doesn't work I think I will have to put this issue "to bed for good" and move on (for my own stress levels/sanity).
Xenia - well spotted - My uncle died in England but was originally from Scotland.

mumblechum1 Thu 27-Dec-12 12:50:04

Sorry I'm so late to this thread!

As Emsyj pointed out, I don't do probate, but if you'd like to PM me the will in its entirety, but with just names blanked off for DP purposes, I'm happy to give you an opinion as to its validity. I'm going away for a couple of days later today, though.

Thanks for all the plugs in this thread, much appreciated! <<would it be cheeky to mention that I'm running a NY special on my advert in MN Classifieds??>>

RichPetunia Thu 27-Dec-12 19:01:45

So glad I checked back on this thread! Shall PM Mumblechum now. Thanks Everyone.thanks

mumblechum1 Sat 29-Dec-12 17:43:14

Have answered your PM, OP. Sorry for delay, just back from a little break smile

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