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How to change or contest a will

(29 Posts)

My mum has just died. Her will was last updated in 2009 and left everything to her partner of 22 yrs. They were not married. In August last yr, her partner had an affair with another woman and told my mum they were finished.
he then got this woman pregnant.
For the past few months, we've been helping mum to find a new place to live. She and the ex had both engaged solicitors to sort out asset splitting and he was buying her out of the house.

She had heart failure at the weekend and died instantly. Her will still leaves all to ex. My sister and I don't know what to do. She doesn't have much - a few thousand in isas, a small private pension, a bit of life insurance but these were all things that were hers and as her ex now has the house (joint tenancy I think. He automatically owns all the house now, which is fine. Don't want his house) and his financial situation has been greatly relieved, I know she would want the rest of the estate to come to me and DSis as she was planning to do by buying a flat close to us. My Grandma (mum's MiL) died last year and her house is being sold and my mum was a beneficiary, so conceivably her ex would also get my mum's share of my dad's mother's house!

We need to speak to him to see if he will do the decent thing and we can arrange a deed of variation I believe, where all parties agree.

If he doesn't - where does that leave us. What grounds can we change the will? Can we change the will now?
We have lots of evidence (solicitors letters showing they were splitting, witnesses as her ex was getting nasty (she called the police once and that's officially logged).

The thought of her hard earned cash going to him makes me sick. Any help would be so appreciated.

mumblechum1 Thu 02-May-13 15:03:16

OP, I am so sorry to hear about your mum. That must have been a horrible shock.

As you say, the simplest and fairest thing would be to negotiate the terms of a deed of variation, however if that doesn't work you can apply to the Probate Office for a stop on the grant of probate, followed closely by an application to the court for an order granting you and your sister a share of the estate.

Although I'm a freelance will writer, I don't do contested probate. Therefore your best bet is to initially consult a high street solicitor to put a six month stop on the issue of the grant of probate (as that's fairly simple to do), and then get either them or a specialist contested probate lawyer to try to negotiate a deed, and if that doesn't work, lodge your application to court.

As you have such a lot of documentary evidence, I suspect that your mother's ex will be advised to negotiate as my view is that you have a high chance of success in court, and he won't want to risk thousands in costs.

EasterHoliday Thu 02-May-13 15:10:03

mumblechum I thought you have to demonstrate a financial dependence to inherit by virtue of Inheritance (Provision for Dpeendents etc) Act? not just because it's rather unfair? unfortunately people being vile doesn't automatically disinherit them and nor does it give someone else an entitlement. If he won't do it voluntarily, getting a court ordered variation is likely to use up more than the value of a small estate. I have been involved in one of these cases and it was very, very emotionally drainign for all concerned and extremely expensive (in that case children denying a girlfriend of 20 yrs anything)

Thanks both for your messages. I have done a bit of research and your replies are along the lines of my thoughts. so I'm praying he will do the decent thing.

I also hope that because it is legally documented that they had split up and it was my mum's intention to change her will, she just never got round to it (I have an email where she says she must change her will, plus their solicitors had agreed a final split settlement for them and the ex was in the process of applying for a remortgage), then I'm hoping a judge would apply common sense and that this is different than just being unfair.

If not, then to ensure the bastard didnt get anything, I would happily use up all his inheritance by forcing him through the courts and i would use a no win no fee solicitor. It's not for the money. It would be nice to give the DC a little something towards uni fees or 1st house from her, but I never expected anything. It's just not on that he trashed her heart and gets not just her assets but her share of my late father's and grandmother's assets too! No way.

mumblechum1 Thu 02-May-13 18:02:12

The easiest way is to establish a dependence under the 1975 Act but that doesn't apply here as you say, Easter.

there have, however, been some recent cases where although no dependence was demonstrated, and intention to change a will on the part of the testator has been taken into account together with other factors.

It's certainly worth a try, OP

iiiiiiiiiiiiiiiiiiiiiiiii Thu 02-May-13 18:15:09

OP,

I am very sorry for your loss. thanks

Have you considered doing nothing and just letting it go. It would, of course, be frustrating but these things can be expensive and prolonged. Just a thought...

OrangeMabel Sat 04-May-13 12:39:00

OP - sorry for your loss.

With regard to your Gran's house it might not necessarily go to your DM's ex. Inheritance usually goes down the bloodline so if one of the beneficiaries dies then their son or daughter gets the inheritance, not their spouse or partner. My DH is due to inherit from several people but if he dies before them, then his share goes to DD not me.

Don't know how this works as your Gran predeceased your mum but you really need to see a reputable solicitor. If nothing can be done then you might get some closure (shudder at that expression!) having known you had tried but the law was not in your favour.

Best of luck.

freddiemisagreatshag Sat 04-May-13 12:40:49

OrangeMabel - I am sorry to disagree, but it depends on how the will is worded. Inheritance doesn't always "go down the bloodline".

OrangeMabel Sat 04-May-13 13:29:28

Indeed, freddie, you can leave things to a non-relative or the cats' home. What I was saying - probably badly - is that if the estate can't be distributed as per the deceased's wishes then it would normally go through the bloodline (that was how a solicitor explained it to me)

e.g. DH's uncle has left him a share of his estate; if DH predeceases his uncle then - unless uncle makes another will - DH's share won't go to me but our DD. I think the legal term is per stripes (?) which means 'through the branch'. So OP's late mother's share of Gran's estate might pass to OP and her siblings rather than exP. Or not, as the Gran predeceased her daughter.

Which, roughly translated, means: see a good solicitor smile

freddiemisagreatshag Sat 04-May-13 13:37:10

It won't. Because once the money was left to her mother it was entirely her mothers to do with as she pleased.

Unless there's a trust of some sort set up.

freddiemisagreatshag Sat 04-May-13 13:40:43

It depends on te terms of the will. And whether or not the residue of the ops grandmother's estate has been distributed.

I have re-read the op am on phone and see it hasn't yet been distributed. So it depends on the terms of the ops grandmothers will.

OrangeMabel Sat 04-May-13 13:59:11

Right. Therefore it won't necessarily go to the OP's mother's exP, will it?

freddiemisagreatshag Sat 04-May-13 14:10:54

It might not. It pr

freddiemisagreatshag Sat 04-May-13 14:11:58

Oh sorry. Phone.

It probably won't. But depending on the terms of the grandmothers will there's no guarantee it'll go to the op either.

digerd Sat 04-May-13 19:38:11

People don't always state in their Will that if the heir dies before them, then that person's inheritance will pass to their DC. It is not automatically so as in some other EU countries, and often the spouse is the next of kin not GDCs in UK.

My Dm's will was advised by her solicitor to state this wish.

Poosnu Sat 04-May-13 20:08:50

Unfortunately I don't see that you will have grounds to challenge the Will. Your Mum's interest in your grandmother's estate will also pass according to your Mum's Will.

A claim under the 1975 Act by an adult child is very unlikely to be successful in your circumstances. Similarly, I assume that you could not bring an action under that Act as a dependant of your mother.

Is there any possibility that your mother lacked capacity (sufficient understanding) when she made her Will? I assume not if her death was sudden.

On the pension and life assurance, the providers may have discretion as to who any lump sum on death is paid to. You would need to investigate this further. Often these payments aren't paid into the deceased's estate, but into some form of trust, to be distributed in accordance with an expression of wish your mother left. If that was the case the payments wouldn't pass according to your mother's Will. But you will need to take action quickly and contact the pension trustees.

Bear in mind that if you raise an action to challenge the Will (which is unlikely to be successful) you may be liable for the legal fees if you lose - this would be a point to check at the initial discussion with a solicitor. I don't know the answer as I don't do contentious probate.

I'm sorry you are going through this.

Lawabidingmama Sat 04-May-13 23:01:05

As the pp says on the facts there are no grounds to change the validity of the will. You may be able to bring an Inheritance Act claim recent cases have seen judges being more favourable to adult children without a dependancy but these claims are expensive.

As your Grandma died before your mother the terms of your grandmas will are irrelevant. The inheritance due to your mother will form part of your mothers estate, I'm afraid as she was already entitled to it when she died. The fact it is yet to be distributed makes no difference.

As a thought I suggest you explore whether your mother had been advised to alter her will and if she had given instructions to do so as there may be some negligence on the part of her solicitors? I appreciate you lost her unexpectedly though.

I'm very sorry for your loss x

Agree with Poosnu - for tax reasons pensions/death in service benefits trustees normally retain discretion to overrule the stated choices of the deceased, so if you get onto them quickly with the facts then this can work in your favour.

Thanks for all your responses. It seems completely mad that my mum intended to change her will (she just never got round to it as at the time her ex was being physically and verbally abusive and she was totally stressed out and devastated by the break up. Ex has to live with this guilt as he was the one who found her - she lives far away and they shared a dog), but she hadn't as her and ex were bashing out terms of split with the solicitors.

Everyone who knew her and ex despised ex for his behaviour and it seems bonkers that her ex now gets to live off the money she had saved up to buy a new flat for herself after he told her it was over.

I understand things are often unfair but is there really no element of common sense applied by judges, even in the face of overwhelming evidence?

We haven't discussed will with ex yet. My sister is an executor and will discuss it after the funeral. We are hoping he will be decent in her death, if not in her life, and willingly agree to a deed of variation. If not, if a no win no fee solicitor will take me on, I will gladly erode his inheritance and no cost to me by taking him to court. i don't care if I don't win a penny, - worth it if he has to spend the cash fighting it.

Just a thought, would the fact that she was very down and depressed at the time of her death and on anti Ds, and was struggling to cope with everyday life affect her ability to change her will? And so, any grounds to challenge?

freddiemisagreatshag Sun 05-May-13 15:45:36

MrsA you have mail.

OldLadyKnowsNothing Sun 05-May-13 15:47:14

I'm no expert, but I shouldn't think her mental health at the time of her death can be taken into account. If you can show she was not well, or was under duress at the time she made the Will, you might have a chance.

In this case, you'd have been better-off if she hadn't made one at all. sad

iiiiiiiiiiiiiiiiiiiiiiiii Mon 06-May-13 01:09:49

I don't think her state of mind before she died would make and difference.
I don't think there will be much you can do.

Do you have any legal insurance?

'Which' (the consumer group) membership offers some sort of legal advice (I think)

You could try posting on MoneySavingExpert.com. There is a section on wills in the forum.

SOME solicetor offer a free half an hour consultation. If you go very prepared they may be able to give you a categoric yes or no as to whether to proceed or not.

I suspect that there is nothing you can do sad but you need to know for sure one way or another.

Xenia Mon 06-May-13 07:35:23

1. There is not much money but there may be if you had a claim to half the house (and the mother's share of her mother's house).
2. Therefore if you are not careful 100% of it will be used to pay lawyers in a contested case so just tread carefully.
3. If you suggest to the partner you will contest unless he pays you half of the ISAs etc then that might resolve it.
4. I think as said above it is highly likely he will inherit unless she was supporting you before death so you have a claim that way.
5. I wonder why she did not immediately split the joint tenancy by a notice to him as soon as she had lawyers looking at separation? Instead her partner immediately gets half the house as it was a joint tenancy. Did her lawyers advise on this? Should they have done? If they did not do are they at fault?
6. Did your mother fill out a form for her life policies to be held in trust eg for you?
7. If she were not sane in 2009 then that will might be invalid but that will be hard to prove.
8. I suspect the best bet (unless there have been recent cases saying if someone is planning to change a will that is treated as if they have changed it (I doubt that is likely)) is to get a solicitor to send one letter and not spend more than an hour on it saying you are claiming half the share of the granny's house and half the house they lived in and all your mother's savings given the separation and however you would like to negotiate a quick settlement and then see what he offers to avoid litigation. The solicitor can try to dredge up a few cases saying if you are planning to make changes to a will they can be taken account of.

I suspect if it went to court you'd lose.

"My Grandma (mum's MiL) died last year and her house is being sold and my mum was a beneficiary, so conceivably her ex would also get my mum's share of my dad's mother's house" - yes that money kis in a sense already your mother's.

Lesson for everyone - if divorcing or splitting up immediately sever any joint tenancy on the house; make a new will right away; insure the life and health of your partner.

Awful question but was a post mortem done on your mother?

Xenia there was a post mortem - she died of heart failure. Insufficient oxygen to brain due to furred arteries and she would have passed out and then her heart stopped.

Sadly, myself and the solicitors kept pushing her to change her will etc but she took the split very badly and most days couldn't cope with it. She was also someone who was very stubborn and would only do something if she wanted to, and not cos someone advised her to. I believe she kept holding off doing things (she had arranged to move out but had not started packing) as she was certain he would 'come to his senses' and reconcile with her.

We have since found out she was likely to lose her diving license shortly due to careless driving and her employer had suggested she was starting to show signs of dementia. Her doctor refuted that but overall it was an incredibly stressful time for her.

Morally,I do not expect to inherit anything that her and the ex had built up during their working lives together.
The house, joint assets etc and I happy for him to keep. It is more about the assets from my dad's side. My sister is seeing him next week to discuss and we are hoping he will be reasonable.
He has taken her death very badly.

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