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Must I recognise a new will(41 Posts)
My Mother has recently died.
I have two brothers and we all thought my Mother’s will left everything to be split between us equally and it was written 10 years ago. I have been left executor of her will.
Today, I was sorting some paperwork out and have found a more recent will. It leaves £100 to each of my brothers and the rest to me - I’m horrified! It is dated a year ago, during which time my Mother started to dislike people for silly reasons, often being quite nasty.
I know I could do a deed of variation to reinstate my brothers’ shares, but they would be so hurt and I’m worried it will change our relationship.
What are the penalties if I “un-find” it. I wouldn’t be defrauding anyone but myself. The 10 year old one was drawn up by the family solicitor, but the newer one looks like an on-line one witnessed by neighbours.
I’m sure this change was because of early stage dementia. We had just approached the GP about it before she died, but with C19 hadn’t got very far. I’m so upset about it. We’ve only just had the funeral, so other than use the centralised website to let government agencies know, I haven’t done anything yet.
If you're the only one who has seen it I would get rid of it and pretend it didn't exist.
Gosh I don't know but if it were me I would not have found the new one. Family is more precious than money.
I'd pretend I never seen it and accidentally put it in the bin.
Family is so more important than money
But if the neighbours witnessed it, they might push it
Below is thinking aloud - some obvious thoughts and no real advice but things to put into the mix - if you think there is a ‘mix’.
So sorry you’re dealing with this on top of everything.
I was executor of both of my parents wills. Going through probate I had to sign various things to the effect that I knew of no later wills etc. You also have legal duty to carry out wishes and ensure the terms of the valid (later) will are complied with.
Does the new will appoint you as executor ? Is there actually someone out there who will pop up knowing they are the executor if the later (valid until proved otherwise) ?
The previous will is invalidated by the later (it should start by saying it replaces and previous wills) - likely your mum will have got a solicitor to draft it ? If so it may be lodged and discoverable going through probate.
Would she have got a family member to help (eg a will kit ordered etc)
Ie is it likely that the later will is known about in a discoverable way.
The later will - was it lodged anywhere do you know?
If witnessed by neighbours do you think your mum will have discussed her new intentions with anyone who might then be aware of non compliance?
Is your mums estate going to be dealt with by probate solicitor or are you planning to deal with it yourself as executor ?
Challenging the validity of the later will / deed of variation of the later will is costly and time consuming (I had a small thing I wanted to ‘adjust’ Re one of my parent’s wills in minor favour of a sibling (a bequeath if one thing replaced by another - not affecting share by more than 2% ish all beneficiaries in agreement) my siblings and I agreed simply to do it after estate was all Wrapped up. Probate solicitor advised against any deed of variation and could not openly advise post estate adjustment.
Good luck. And condolences re your mum it’s really tough even without this complication.
But if the neighbours witnessed it, they might push it
There's no reason why the neighbours would find out how the estate was distributed. Even if they did, you could claim no knowledge of the new will. I'm with everyone else - destroy it and forget about it.
Apart from you are not correct plying with her wishes, many wills now are registered online and you could be getting yourself in a whole heap of trouble as well as extended legal problems if you do.
I recognise and applaud your thinking about this dilemma though
But not all wills are lodged with probate and as it's a complex process to go through its probably unlikely in the case of this newer one. I applaud what you are trying to do op. As you benefit enormously from.the newer will, you would be the one to complain about it not be honoured and it is unlikely therefore that anyone would come forward to dispute the enactment of the fairer ten year old will.
I think the answer is simple. Go along with the latest will, thus removing any chance of a challenge coming in, and then settle the estate as per the previous will with your brothers. They may well be upset now, but it will remove the chance of any festering resentment towards you in the future.
But who’s going to challenge it? The new will leaves everything to the OP. If anyone was going to challenge it it would be her, and she knows about the revised one.
If the will left everything to one of the brothers, or everything to some charity then I would say make it public, but in this instance I would destroy it. If it has been registered online somewhere then this will come to light and the OP can still deny all knowledge of it.
I would agree with ifail for lots of reasons if that later will is valid - validity may be questioned due to her dementia but to establish that would be costly and time consuming.
Your brothers may be upset but will surely come to understand the reasons behind later will we’re not ‘rational’.
As executor you also have duties to agree that the will is valid so if you were to put anything in writing to your brothers abkut ‘post probate administration period’ adjustment your mums dementia would be best not included.
Problem is there will be tax implications for you all if you do this (Depending on value of estate and shares) - the estate will end up paying more inheritance tax if you inherit more than iht allowance and your brothers will have tax implication if you ‘gift’ them anything significant (and it would then be a ‘gift’ not an inheritance in tax terms.
Trust that your brothers won’t be “devastated” as presumably they understand dementia, as their mother has suffered from it, so will know that she did many things that your mother Orr dementia would never have done
Essentially you can’t be “god” and you just trust that your brother will understand.
Have a good round table and bring in solicitor to convey that you wish you proceeds to be split three ways.
Your proceeds are your proceeds to do as you wish with.
tbh I would be honest.
especially given your mother's illness.
you can always share with your brothers equally the proceeds.
@HeronLanyon, as I understand it, inheritance tax is paid on the total estate value, doesn't matter how it's split up so that won't make a difference.
As to gifting to her brothers, I believe if they live for 7 years, there are no tax implications. However, proper legal advice should be sought.
Each beneficiary has a iht free allowance - depending on size and split this can bring about differing estate iht liabilities. So if op’s allowance was all that could reduce estate iht (because she followed later will and it all went to her first before informal adjustment) the estate liable to iht would be greater than if all three used allowances. That’s what I was thinking.
If the will is valid, and I assume it is, you can't ignore it. However, you could say to your brothers "I think we should split equally". That's your choice. FWIW this is happening to my family at the moment: £150k to one sister, £10k to another. It's horrible, but "fixing" the will won't take away the hurt.
Will your brothers definitely read either will?
I'm wondering if you could follow the new will legally, then you could simply transfer the money from your account to theirs - it's yours by then, so you can gift it?
Each beneficiary has a iht free allowance
No, they don't. There is a single IHT allowance for the estate (£325k currently) and there is an exemption for anything left to the deceased's spouse, civil partner, charity or community amateur sports clubs. How the estate is distributed between the OP and her brothers will make absolutely no difference to the amount of IHT payable.
@Nightowlsleeps - From a legal perspective you are required to follow the latest will. Your brothers would not need to know if you executed a Deed of Variation to reinstate their shares - as you would be the only beneficiary giving up part of your entitlement no-one else would have to sign the Deed of Variation.
I would file it in the bin (or even burn it) and then forget ever finding it.
If it is ever brought up I would deny all knowledge.
My relationship with my sisters is more important than following the law to the letter.
"Advice" to destroy it is really bad/dangerous advice.
What if the mother (due to dementia) also wrote another will earlier leaving all her money to the local cat's home which had been registered or prepared by a solicitor, before her "apparently" final will leaving it all to the daughter?
In that case, the cat's home will would stand (due to having been registered) and none of the family would get anything.
In my opinion/experience, it's better to be honest, tell the brothers, agree to split it as per original 3 way plan. Dishonesty often has a way of coming back and biting you on the bum!
Come clean with your brothers and follow the new will, but do a deed of variation/gift the money as you see fit to reflect the "old" will.
It's hurtful, but you shouldn't have to carry this secret around, nor have it hanging over you that it will come out one day and get you in trouble. Hopefully your brothers understand and the fact you'll support them and not be grabby is the main thing.
Good luck OP
I don't usually post on these threads (retired solicitor) but posters PLEASE don't post on legal matters if you have no legal knowledge. OP (assuming you are in England/Wales) - follow the excellent, correct, and qualified advice from phr47bridge. Just quietly execute a deed of variation and distribute accordingly. Then everything remains legal - your brothers need not know.
Deed of variation on the new will is the only way that is both legally correct and morally fair.
Thank you all for the replies. I’ve slept now and am a bit more rational.
I’ve thought about it now and I’m going vary the latest will to apply the wishes of the original one. I will do so with a solicitor and I will likely use the one who wrote the original will. As we all “knew” what was in the original one and have an electronic copy of it, I hope neither of my brothers ever look it up on line and will arrange for the solicitor to disperse the money when it’s due. I’m the executor in both wills, which makes it easier.
I just hope they never find out. In rational thought, they won’t blame me and will realise it was the early stages of my Mother’s illness talking. Emotional thoughts are often stupid and insidious, which could harm our relationship and their memories of our Mother.
Thanks for all your help. It was never a case of whether I would share, just how to do so in the best way for all.
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