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Original poster

Where does my DS stand?

91 replies

elizadoestoomuch · 06/03/2011 17:25

Can someone advise me please?
i will try to be clear but apologies if not.
DS dad (my exp) died at the end of January.
He owned his flat and told me a couple of years ago that should anything happen to him he had made a will and got the correct life insurances etc so that DS would be provided for if anything happened to him.
Got a phonecall a couple of days ago from ExPs family saying that paternal Grandad would like to contribute to DS "upkeep" (for want of a better word). I think this is a lovely thought but no mention has been made of what provisions have been made for my DS. Don't kow for sure what the will says.
I have to phone them back but really don't know what to say.
I'm thinking of something along the lines "such a kind offer but as ExP assured me that DS was provided for then it really is unneccessary." But that sounds so cold?
Relations haven't been great between them and us for a year now because of DS dads begaviour but I don't want to make things worse.
On the other hand I would like to make sure my DS recieves what he is entitled to.
Again I think it is a very generous offer by DS grandparents but it seems wrong if DS is supposedly provided for.
Am I making any sense? Such a hard issue. Don't want to be cold or callous to anyone just tired of not being given the correct information (the family have form on this- didn't notify us for over a week that he had died).
I guess my question is what do I do if there is a will and what do I do if there isn't?

OP posts:
Original poster
elizadoestoomuch · 09/03/2011 11:45

Aw thankyou Constance. I feel shit to be honest.
Part of the bck story is here www.mumsnet.com/Talk/relationships/1035170-EXP-with-mental-health-issues-access-questions-Advice-please?pg=2
I'm just tired of feeling as though I'm always fighting. My son deserves better.
We're not a big family so I really believe in keeping what family we do have close to us. But paternal family aren't playing ball. 8days it took for them to tell us that DS dad had died
I will take the hug offered tho, thankyou.

OP posts:
melvinscomment · 09/03/2011 12:18

@ elizadoestoomuch :- I hope your solicitor sends a relatively nice letter to the grandparents requesting a copy of the will. If heels are dug in and a legal battle ensues the only winners will be the solicitors and barristers representing each side. This is a true story, not about me or any of my family. A woman's brother died and there was a battle as to whether or not his will was valid. The woman's solicitor said the will, which was just a sheet of paper saying the brother left his things or whatever to someone other than his sister. A legal battle ensued and the woman's solicitor became gradually less confident. In the end the woman lost and had to sell her house to pay her, and presumably the other side's, legal bill!

melvinscomment · 09/03/2011 12:22

I missed the end off a sentence above! The solicitor initially said the will was probably invalid or could be successfully challenged or such like.

Original poster
elizadoestoomuch · 09/03/2011 12:24

We have used our solicitor for over 20years - he is lovely and fair minded. I can't imagine he would send anything other than a clear concise letter. FWIW I didn't want any of this. It should have been so simple to discuss between the families. They have chosen not to. Therefore my only choice has been to seek legal advice. My son comes first.

OP posts:
starfishmummy · 09/03/2011 12:33

I think you are right to get your solicitor involved as it all sounds very complicated. My thoughts that as executors of the will it is their job to distribute the assets; if they have not been named as trustees in the will, I'm not sure that they can decide what happens to them.

Hopefully the grandparents will cooperate but I'm sure that your solicitor knows that wills are a matter of public record and that anyone can get a copy.

Earlybird · 09/03/2011 12:36

As a last ditch effort, should you try to send the family a letter with your requests (seeing as they don't communicate well verbally)? You could clearly lay out your questions, and hopefully they will respond.

It may be a useless gesture practically, but could be an important gesture for you as it would show you have made every effort to sort this out before bringing in a solicitor. The solicitor could advise you on the content of the letter, but it would be in your words so definitely less 'confrontational', iyswim.

ajandjjmum · 09/03/2011 12:38

So glad you have a relationship with your solicitor - that makes all the difference in my experience.

Maryz · 09/03/2011 12:44

This reply has been deleted

Message withdrawn at poster's request.

Gonzo33 · 09/03/2011 13:06

ajandjjmum I totally agree.

To the OP I just want to wish you well, and hope for your DS that your exp's family see sense soon.

melvinscomment · 09/03/2011 13:52

@ starfishmummy :- I don't think wills are a "public record" until after they have been filed at a probate registry, which I think only happens when the executors decide to liquidate the estate and distribute the assets.

silverboy · 09/03/2011 13:55

I do not think that you need to worry too much about ex relly's feelings, you need to be very focused on your son, I wish I had known more when my Mum passed. The solicitors need to be involved because I do not think that your exbil understands his role; I am not clear whether he is the executor or the trustee or both!! has a trust been set up under the Will? is the Will properly witnessed and therefore valid. As a trustee i believe that they are entitled to some sort of renumeration if the will so allows. But all this is academic if there is no valid Will and it might be that bil has no legal capacity to act as executor. Quick story, i know someone whose ex partner stepped in very quickly, within hours of her death to administer her estate. They were never married and did not live together, but did have two child together. Her work place paid her 'death in service' money over to him as he portrayed himself as her current partner , her property was converted to his name. There had been no one to question what he was doing, her immediate family (she was reaaly young) had been too disraught to realise what he was doing and by the time they got themselves together it was too late. There was no valid will in this situation.
Please do not feel because you exbil has said something that he is right. Yes soliitors fees are involved and I believe that even the bil's fees would possibily come out of the estate if he had to engage a solicitor, but you can keep track of this by constantly asking for fee updates. You really need to find out how much the estate is worth and be kept in the loop as much as possible. Your son now has you to rely on. A previous mn'er mentioned having a neutral third party would force bil to look at things more clearly, I think she is spot on and having a solicitor do this is the best way. i am sorry for your son's loss and hope this turns out in the best possible way for you and him.

melvinscomment · 09/03/2011 13:57

@ Maryz :- One thing you may have overlooked is, if elizadoestoomuch takes legal action and fails she won't be able to get her legal costs, or their legal costs!, out of the estate, she will have to pay them herself!

melvinscomment · 09/03/2011 14:01

Is that not correct Resolution ....

Maryz · 09/03/2011 14:06

This reply has been deleted

Message withdrawn at poster's request.

melvinscomment · 09/03/2011 14:12

@ Maryz :- I don't recall saying anything about "the establishment". In the past I was involved, as one of the parties, in a legal case relating inheritance.

Maryz · 09/03/2011 14:17

This reply has been deleted

Message withdrawn at poster's request.

VerintheWhite · 09/03/2011 14:33

Has BIL put aside some personal things for DS? Photos, old certificates, favourite tie etc. DS might one day like something like that and it might be worth a mention before things get thrown away or difficult.

melvinscomment · 09/03/2011 15:09

I wonder when? one of the proper lawyers like Resolution are going to confirm that if elizadoestoomuch initiates legal proceedings and loses she will have to pay her legal costs and their legal costs!

Original poster
elizadoestoomuch · 09/03/2011 15:23

Thankyou for all your responses.
Melvin I am not initiating legal proceedings right now. All I am doing is finding out about the will via my solicitor.
Yes I wish it wasn't like this. Yes it would be easier to talk to the family direct but if they won't communicate with me what other choice do I have?
ExPs family claim they have DS best interests at heart but as that has not been the case for the last 12-18 months then forgive me for not having faith in their motives now.
Verin nothing has been mentioned with regard to putting aside personal items for DS. I was hoping to bring that up in our last phonecall. I will send them a letter though I don't hold out much hope.

OP posts:
Jellykat · 09/03/2011 15:49

I agree, if possible, to try getting something personal for your DS.

When i was 13 my dad died,and i went to his flat with my mum, noone thought about giving me anything to remember him, but i did slip a couple of things into my pocket - i still have them 44 years later.

The very best of luck eliza.

Resolution · 09/03/2011 16:05

Wrong Melvin. The court often orders that both side's costs are met from the estate, unless it was wholly unreasonable for one of them to conduct proceedings in the way they did.

Nice of you to ask though.

melvinscomment · 09/03/2011 16:14

@ Resolution :- "often" isn't the same as "always". In the inheritance case I was involved in an unmarried partner (not me) of a deceased person tried to obtain money from the estate, which according to his solicitor was entirely reasonable, but failed, and wasn't awarded his costs !!...

melvinscomment · 09/03/2011 16:17

Bottom line is, if elizadoestoomuch can do a deal with the in-laws it will be a lot less stressful and will not lead to a big chunk, if not all, of the estate being consumed in legal fees.

Resolution · 09/03/2011 16:47

Melvin - that was a claim under the inhertance act. OPs claim, if any, wouldn't be under that as her son is inheriting the lot anyway (I presume). Her claim would be against the trust, to either appoint new or additional trustees to administer the trust in the interest of her son, (ie to pay actual maintenance to her so the child gets what he needs as a child and doesn't have to wait until he's an adult) or to bind the trustees to make a regular payment to her.

Resolution · 09/03/2011 16:55

The trustees need to show they have acted reasonably, having regard to the terms of the trust. If it is simply them holding for the child on trust, then ss31 & 32 of the Trustee Act 1925 apply, which set out what the trustee should do and what they should take into account when doing it. That sets out how they should apply income of the trust. There has to be a very good reason why no income is being paid out, eg the asset of the trust is a non-income producing asset.

If OP is reasonable in bringing the claim, her costs would be met from the estate. If either party is unreasonable in bringing or defending the claim, they may have to stand their own costs.