Inheritance

[Anotherpotentialinhertiance1]

J is the mum of A,B,C she is 96
C died four years ago, B and A still alive.
J is 96 and has moved in with A and his wife and son who is still a little boy. Band Cs children are all grown adults.
A and his wife have provided many years (15 +) with hands on care, shopping, all appointments, house maintenance, washing, social visits, holidays, life admin as well as A and E visits when needed take unpaid leave to care for her when ill and have cancelled holidays to provide emergency care. Essentially they have enabled J to stay in her own home and have completely placed their lives on hold. They work around J and her needs, provide hands on care, food, appointments and social outings.
B and his family (children and great granchildren) have not visited J for several years and generally just make a quick phone call and send flowers occasionally. There has been no rift just as J has needed more care they have backed away from any involvement.
It was six weeks before they realised that J was no longer living at her home. A and his brother have drifted over the years and don't particularly speak.
J is selling her house, this is going for 200k and she has other savings to about 60k. Her intention is that she will have the cash ready to pay for additional care if she needs it, saving A all the hassle of having to sort out money from her estate after she dies.
J recently requested a solicitor to change her will, she has full capacity. She is changing her will to give A and his wife all of any money that she has left , although A and his wife are providing everything she needs care wise and are not paid to do this so are gaining nothing financially while she is alive.
The most recent will before this was
1/3 of any money left to A
1/3 left to B
1/3 of money left to Cs two adult children.
A is concerned about the potential backlash from the rest of the family on discovery that they now stand to inherit nothing. He is worried more about legal action rather than the moral one because he feels like they have had it easy and not showed J any compassion. If you were the rest of the family how would you react to find that you now stand to inherit nothing?
I'm not standing to inherit anything I'm a friend of J but not as old as her, she looked after my kids when they were younger. I live next door to J and visit her often at As.

You're mistaken about that. It's rather more nuanced and depends what assets are left.

If you live in Scotland then you certainly can disinherit any child from receiving land or property.

There are certain situations when you cannot disinherit a child in Scotland from receiving a share of the "moveable estate". The moveable estate is everything except land or property, so that includes investments, bank accounts etc.

If this is in relation to two sibling children, I can never understand how a parent can do this (unless a truly awful thing was done by the child like murder or paedophilia etc). The parent must realise that this will split the family for generations and cause untold rifts. Even if you are relatively wealthy (you might want to help your own children/grandchildren out financially). Of course they can leave it to who they want. I’m sure if the tables were turned they would not see it like this. But if you are the sibling who is left with nothing it sends a message. Some people are spiteful to the bitter end

To make sure there is no comeback:

Ensure one of the witnesses is a medical practictioner who "satisfies himself [sic] of the capacity and understanding of the testator, and records and preserves his examination and finding."

Have someone other than the beneficiary talk to J without others present to understand her wishes to avoid the apperance of undue influence.

Find out if J has promised anything to her children or grandchildren, and they have relied on that promise. If she has, then they have a case to contest the will based on proprietary estoppel.

I J is leaving them anything at all, you could add a "no contest" clause.

It would be wise to leave the grandchildren a little money each - £500 or so.

Take out legal insurance if you don't already have it.

I am not a lawyer. Take legal advice.

If the OP is correct about the family situation (and I do accept that she may not be, as she relies entirely on what J and A have told her) this family is already split. B and C have chosen to have little contact with their parents and their children have followed suit. There may be very good reasons for it, or maybe they just didn't get on. They may have felt overlooked when A arrived so late in their parents' lives and developed a very close bond with both parents. Maybe circumstances were very different when A came along - less financial stress, working lives at quite a different point, J's and T's parents had perhaps died after needing years of care so J and T had more time for A than they'd had for B and C when they were young, B and C may have been closer to their in-laws than J and T - we can all speculate on all sorts of possibilities. But the end result is that A was always close to his parents and B and C weren't. It would be odd and rather mercenary if B and C and their children had been counting on inheriting from J in spite of never going to see her.

"He is worried more about legal action rather than the moral one because he feels like they have had it easy and not showed J any compassion."

It is very difficult indeed to successfully make a claim of undue influence in order to contest a will. B and C would need to prove that there is no other reasonable explanation for J changing her will other than undue influence from A.

But, even so, it would be best to mention this concern to the solicitor who is drafting the will. They will likely give J and/or A advice.

One other area where it may be possible for one of them to claim against the estate is if they are in real need or hardship. There is often an element of ill health or disability or using the money for a specific purpose involved in successful claims.

I'll give you a couple of examples where this happened.

In the case of Elena Nahajec who was 31 and hadn't seen her father for almost 20 years, both she and her half-brother were awarded amounts even though the father had specifically included a letter explaining why he had disinherited them.

The estate was worth about £250k. Elena, who worked part time and wanted to train as a veterinary nurse was awarded £30k. In a separate case her half-brother who was disabled had settled for £22k.

Nahajec v Fowle [2017] EW Misc 11 (CC)

In the case of "H Deceased", his entire estate, worth £554k, was left to his spouse who was then in a care home. The son was the executor.

The 50 year old daughter had a complex psychiatric disorder, considerable financial problems and she lived in substandard rented accommodation with two young children. She was awarded £139k

Re H (Deceased) [2020] EWHC 1134 (Fam)

In the case of Rochford v Rochford in the Peterborough County Court in 2021, the father had mostly disinherited his only daughter. Out of an estate worth £245k he only left £25k to his daughter and everything else to his sister (the daughter's aunt).

The daughter had a severe degenerative disease which prevented her from working. She was awarded a further £85k and also costs against her aunt. The costs are likely as much as the award that was made. These articles from the solicitors that represented the daughter:

https://todayswillsandprobate.co.uk/a-stark-warning-on-costs-in-contentious-probate-matters/

https://www.shoosmiths.com/insights/articles/the-adult-child-strikes-back-rochford-part-36-in-inheritance-act-claims

But if none of these circumstances apply, then the person is unlikely to be successful.

For example, in the case of Shepton v Seviour in the High Court in 2020 an adult daughter who was comfortably off made a claim on her father's estate which went to her stepmother (even though stepmother was leaving her an equal share on her own death). The judge said that her case was "absolutely hopeless" and gave her nothing.

https://www.freeths.co.uk/insights-events/legal-articles/2020/the-good-the-bad-and-the-hopeless-shapton-v-seviour-2020/

Or the case of the children of Anthony Shearer. When he died, his estate was worth around £2.2 million. He left everything to his second wife and nothing to his two daughters who were then in their late 30s.

Again, the court gave the daughters nothing:

Miles & Anor v Shearer [2021] EWHC 1000 (Ch)

That case even made it into the Daily Mail at the time:

https://www.dailymail.co.uk/news/article-9504515/Millionaire-banking-bosss-daughters-LOSE-court-battle-step-mother-7m-estate.html

I know someone in A’s position and while their parent felt they were being fair to leave all to them, it’s actually left them in a horrible situation where the family relationships are now totally ruined. The family wouldn’t even accept gifts from A’s inheritance, considering it charity or done out of pity. Even a token amount would have avoided or reduced all the strife. OP in your position I would urge the lady in question to even things up even a tiny bit to protect A.

@Anotherpotentialinhertiance1 I would feel exactly as I did when I did not inherit anything!! fuck them!!! I was eased out of the next and a year later younger sis was also eased out! Neither of us inherited! all to favour the golden child who ended up with everything, the house the shares the last bottle of whisky and the last tin of beans!! mother had said many years before, when dad was still alive, that she wanted older sis to have the house so I just knew that she would change her will after dear dad died! older sister was always looking at mother as the bank of mum even though she did nothing for her!! older sister died 11 months after mother so no loss of either of them!

WTF

So what she is spending her own money on her practical needs.

What A is providing is love, help and attention and physically doing things for their mother while B and family and C's kids don't even bother to visit let alone help her.

Everyone saying it will ruin A's relationship with their family. It sounds like they don't have that much of one anyway if they never see them to help their mother/grandmother.

The will won't be challenged, challenges are very, very expensive and rarely succeed.

If she is of sound mind she can do what she wants, but IMHO she should be explaining her reasoning to the rest of the family and that it is her wish.

In my opinion, J should leave everyone of her family something in the will...1 or 2 thousand each if there is enough and rest to A. It leaves things sweet. No one feels snubbed. She has grandchildren.

J is entitled to do what she likes however I think it's really unfair leaving A to have to front it on her death.

@Againname

The adult DC providing care has been doing so for a while? But only now,
Now BECAUSE A has been caring for while.

Are you suggesting it would have been more reasonable for J to have changed her will when A first started caring for J? That would have been very peculiar. To change your will when A only just started doing things and before J saw how much that care entailed and cost A

It's only now after a long time of A caring that J feels they need to show appreciation and perhaps feels they should be paying A back with the inheritance rather than accept A paying for everything then giving other people the
Money.

@dunkdemunder I obviously don't know the specifics of this family's circumstances and background. I just saw a potential red flag. A 96 year old in fragile physical and mental health suddenly changing their Will. I'd wonder if, considering their fragile physical and mental health, they genuinely have capacity to make decisions on changing their Will at this very late stage in their life. Perhaps they do but it stood out to me as a possible concern.

The bar for capacity is set pretty high, even with a diagnosis such as dementia someone can still be deemed to have capacity, my dad dies of dementia early in the year, only in the last 9 months was he deemed not to have capacity, and that test had to be done by a Dr.
If the will was done through a solicitor, they will have satisfied themselves that the person knew what they were doing.

I do think she will end up leaving a nominal amount to be honest. I know that A is planning on being completely out of the house when the solicitor comes to see J.
J has got complete capacity, she moves money around from savings to other accounts, does her budgets and keep a track on her finances. A supports her and keeps receipts for anything that she wants to spend her money on. I took her around to a garden centre a couple of weeks ago and she bought some plants for outside her bedroom window. She kept the receipts for those too.
There really is no relationship to lose between A and his siblings.They have been happy to let him shoulder all of the care without any support. Their lives have carried on while A and his family spend all their time making sure J is safe and happy in her old age.

This maybe the case but once she is no longer here the onus becomes on him to prove she had capacity when she made this will. The solicitor needs to be aware of the potential problems, whilst she is alive.

If I were this lady I would ask for a capacity test for myself to help my son when the time comes.

J needs to explain in her will her reasons for disinheriting B and C children. Makes it harder to contest the will. Also if she goes into a care home and is in pher nineties the statistics are that she may only last 2 years at most. She has done very well to get to the age she has and tbh I would put that down to having been very well looked after.

My elderly mother has had her will drafted. In order to ensure she had capacity, she attended an appointment with a psychiatrist to ensure she had capacity and to stop anyone contesting her will. A report was drawn and is with the will. Your friend should seek legal and medical opinion to ensure her will is water tight. She should also leave nominal amounts to B and Cs children, say a couple thousand rather than £100 just to ensure they're not entirely cut out of the will and a letter of wishes for the executor to follow, setting out her reasons why B and Cs children are receiving substantially less.

The concept of a gift of a few thousand to prevent a contest is usually used where a spouse is being dis-inherited where there are legal provisions for contesting.

Whilst the children may be able to contest the will (however if she has capacity, and that is proven, no chance) The grand children have no rights and don't have to be included, its quite common for a parent to leave their estate to their child and not the grand children.

However, if the estate is sufficient I think a gift to the other family members would sweeten the pill a little.

These gifts could be from the residual estate, meaning no property would have to be sold to make them, if there is no residuary cash, they cease to exist.