i wonder if anyone can share what happens when someone dies intestate (actual as oposed to what should happen)
My DSD passed away recently. He made a will and then married my mother. He was told by the solicitor that if he got married then the will would not stand unless he put a certain clause in (which he refused to do)
The will left part of a property to one of his children, to be given on the passing of my mother.
His children hate my mother, and she hates them back (he knew this)
As he got married, he basically died instestate, so what happens? The entire estate is under �250k.
Can the children (in their 50s and very financially secure) challenge this?
I think the entire estate will pass to your mother if you live in England and Wales. Scotland has different rules.
That possibly won't stop the children putting in a challenge though. They must be very upset about this.
It's a shame that your stepfather ignored the solicitors advice. It would also be a shame for his children to receive nothing. Would your mum agree to a variation (not sure if this is possible with no will) so that your stepfather's wishes are adhered to?
Difficult. Distant relations of mine had similar situation.step Dad died and left house to wife. Wife was put under huge pressure to leave it to her step children. She wrote Will to this effect and lo and behold the will was invalid when she died (something to do with witnesses not seeing her sign it ?) As she had been a solicitors clerk her son took this as a sign that she had done it purposely. He offered them a third of the estate with 3 months to accept. Never heard from them again. Son had done everything for mum and stepdad.
What's the value of the estate? If it's more than £250k, his wife gets the first £250k then the remainder is divided. Wife gets 50%, the children share the other 50%. Children does not include step children. If one of the children has died, their next of kin inherit.
His estate will pass to your Mother. They could make a claim if they were dependant, from your op it sounds like they weren't. Your Mother can choose to do a variation so they do inherit but that is completely her decision.
As pps have said, the estate will pass to your mother. Although his children weren't dependent upon him, they can still make a claim on the basis of a reasonable expectation, and point to the will he made as indication of his true wishes, IF it was made not long before the marriage and IF there is a question over whether he was truly aware that the will was going to be revoked on marriage.
Did the solicitor cover his/her back by putting the advice in writing (that the will would be revoked on marriage)? It sounds as though they did.
tbh if he were my client I would have made sure that he understood that the will was going to be revoked on marriage and insisted that if he didn't want that to happen, he put in the non-revocation clause or told him to go elsewhere - this case is ripe for litigation imo.
This is a fair summary and confirms what people are saying above:
"• A divorce treats former spouses as if they were omitted from the Will. No gift will pass to them, and even if they are named as executors they cannot act as such. However, the rest of the Will remains valid. • Marriage and remarriage are somewhat different. A marriage usually cancels any previous Will. • As a result you could find you have no Will at all and the intestacy rules would apply."
When I say this case is ripe for litigation, I mean that if there is any question at all that the testator was not aware that marriage would revoke the will giving a share of his estate to his children, the children could well litigate on the basis that the testators wishes should, at least to some degree, be carried out irrespective of the revocation.
Whether they would win or not is a very different matter, but by the time it has gone to court, no matter what the end result, even if the litigants withdraw, it's likely that the estate will be reduced.
So the challenge to the will wouldn't be on the basis of the children being dependent on the testator but on the basis of a mistake. If there's documentary evidence that the solicitor warned your DSD of his actions in not putting in the appropriate clause in the will to prevent revocation, and of his refusal, then the case is unlikely to get off the ground unless there's something else going on.
So it all hinges on what is in the solicitor's file.
re the 'poor dc's' - these 'd'cs bullied and shouted at both of them, were extremely rude, tried to separate them in the final weeks by moving DSD to a home far away from my DM, which would have meant they would have never seen each other - they were dispicable beyond words. They did other things which i wont go in to here - but quite frankly, my DSD and DM adored each other and lit up when they were in the same room, even when his mind was going at the end, he still knew it was her
and they wanted to split them up..... evil
thanks for coming back mumble - he definately knew, as it was talked about in the months up to and after the wedding..... he was a very intelligent man (professor & dr)