Trust fund issue

[StiffyByng]

I'll be as brief as possible!

DH's ex-wife died before financial divorce proceedings could conclude. He had residency and his solicitor felt he had a good chance of getting close to 100% of marital assets as his ex had a large inheritance and he had spent a huge amount of money on legal fees in the residency proceedings (ex was on legal aid) and needed to buy a house.

After she died, the executors of her will refused to allow him to have more than 50% of the value of the marital assets, which will pay off his legal debts but nothing more. He couldn't afford to contest the will and we are now married, which means he is unable to.

There is a large trust fund for the kids controlled by the executors who are also trustees. The ex's mother also died around the same time, and has also left a trust fund for the kids. The ex was very vicious about my husband and 3 of the 4 trustees believed what she said and see my husband as a money grabbing bad man.

We are now desperate to buy a house - we are in my two bedroom flat with the kids (girl, 11, boy 8, sharing a room) and a new baby on the way. We will have some money from selling my flat but nowhere near enough to buy a house in this area.

My stepdaughter has medical and emotional problems and we will need to buy a house that can be adapted for wheelchair use, which rules out all cheapish houses in the area. All trustees have refused to invest money in a house purchase, so the only option will be to move completely out of the area, which will mean a change of schools for both, distance from all stepdaugher's medical care and joining long waiting lists again for all the support services she requires.

It's been suggested to us that we apply for a court order to require one set of trustees to invest as it's clearly in the children's interest to do so. Anyone legal out there with an opinion on how likely this is to succeed? We may be able to frighten them into it without court, but we really can't afford more protracted legal activity.

Taking from the children is not so much a no no from the judges point of view (though they will have a legitimate claim and will be respondents to his application) but just consider what they will think when they find out as adults that dad took some of their inheritance.

The divorce is dead and cannot be reopened. WV is wrong.

I'm not sure that an Inheritance Act claim would give him more than divorce, but I only do divorce, not inheritance claims, so prh may know better than me.

It certainly isn't guaranteed that an Inheritance Act claim would give more than divorce but the rules are somewhat different. Under the Inheritance Act courts have to consider:

• The age of the surviving spouse and the duration of the marriage
• The contribution made by the surviving spouse to the welfare of the deceased
• The settlement the surviving spouse would have received if the marriage had been terminated by divorce instead of being terminated by death

Note that where the marriage has already been terminated by divorce but the financial proceedings have not completed the courts treat it as if the divorce had not happened.

The case of Re Krubert [1997] Ch97 made it clear that the "deemed divorce" is only one of the factors considered, providing a check that the amount awarded is broadly correct. The Law Commission report that preceded the Inheritance Act stated that the award to the surviving spouse should be at least what they would have got on divorce. More recently the Appeal Court in Fielden and Graham v Cunliffe [2005] EWCA Civ 1508 suggests that Inheritance Act claims should be more generous than divorce, particularly where the marriage was short.

So the summary is that an Inheritance Act claim should give at least as much as divorce would have and may give somewhat more.

That's really useful, thanks.

Resolution, it's a good point but the kids seriously will have a lot of money still, and the very good cause is that we NEED this money in a way they really don't. There's also a chance that my stepdaughter won't survive until she inherits, in which case making sure she's OK in the meantime is far more important. If the ex had lived a short while longer, this money would never have been theirs in the first place.

Go for it then.

We've made an appointment with our solicitor for the New Year and are writing a paper for him with everything set out in advance. Thanks for all the advice and encouragement.

I've thought more about your point Resolution, and I genuinely think that if the kids grow up to resent my husband asking the court for the proceeds of a house that he paid for, in order to buy a new house for them to live in, and leaving them only [more money than he or I will ever have] as a result, then we'll have raised pretty unpleasant kids. It's always possible but I really, really hope not.

Just wanted to let anyone who's interested how our solicitor's meeting went. We've seen him once before a few months, when trustees' positions were less clear and the financial situation was quite murky - he is a will/trust expert.

He was very encouraging and thinks we have a great case. We are going to open an Inheritance Act proceeding to ensure we can go ahead with that, and he thinks it's likely my husband would be awarded all the marital assets. In the meantime we are going to send 'stinking, scary' letters to both sets of trustees threatening to apply to have them removed if they don't do what we want. He's also looking into possible Trust Act/Children's Act proceedings for us. He was positive and pro-active and has made me feel so much better about it all - it was a bit like therapy! He's not a chancer so I don't think he's raising false hopes - he was sure to tell us that courts aren't predictable in either of these areas of law so we can't count on success - but he certainly feels we'll get somewhere with something, and hopefully put rockets up them with the letters so we don't have to go near a court anyway.

Thanks for the all advice on here from you all. It helped get me through the last few weeks.