Contesting a Will

[Juststopamoment]

My ex died. We had two children together. His Will left everything to his brother who then put the money in trust for the children until they are 21. The children were not mentioned in the Will. There is a further £18k that the family is holding onto saying that only they will spend it on the children for things they need and none of it will come under my control. Can I take the Executor (he is the same brother who the money was left to) to court because no provision has been made for the children in their daily lives? They get a combined amount of £50 a month from my ex’s pension and that’s it. The rest is all me. Just to add my ex was an addict and a liar and I’ve taken his mother to court for making false allegations about me and following me and the children down the street when I was taking them to school. They are a hideous family. How much is this likely to cost? Can it be done in two hearings? Thanks.

I left it 3 years because I initially didn’t want to contest it simply because they are liars and have lied about me consistently in court. It’s very stressful. Now they have access as well as keeping the money I’m beginning to think that this is all wrong. It was also having the mind space to be able to think of these things while they were causing chaos in my life.

The Will didn’t even mention the children let alone a trust. It just said everything was left to the brother. They had obviously discussed it as a family as he redid his Will in 2015 and decided that was what would happen. Both children were born by then. They didn’t want me to control the money so that’s how they did it.

So the brother didn't "need" to give anything to the children, in trust or otherwise, the money was left to him personally?

I think if he'd taken that at face value you may have been able to contest it, at the time, but as he's made generous provision for them I have my doubts.

Yes but as I said it was obviously discussed before and it was agreed that that was what they would do but no thought has been given as to the fact that we no longer receive maintenance from my ex and basically aren’t getting anything from the estate while they are growing up. We are not in poverty but they will miss out on stuff and it’s the basic principle as well. They should be getting something from the estate while growing up.

The £18k was not mentioned in the Will because it was left over from the estate once everything has been paid.

You need to see a solicitor
The £18k not given to anyone in the Will should go to your sons (assuming nothing said about who gets the residual)
If he paid regular maintenance to your sons you can contest the will as a dependent
(Well, on sons behalf)
Any life insurance he had, that goes outside the will and usually at the discretion of the life insurance trustees, who would generally give to his kids and not to an adult brother.
So discuss with solicitor ASAP
The money to brother, he could change his mind at any time about passing to his nephews, unless a trust had actually been set up?

@LuluJakey1

www.slaterheelis.co.uk/litigation-dispute-resolution/complete-guide-contesting-will/

You can still contest it.

Read the link; none of the conditions fit what OP has described.

If OP contests, then the Executor brother would pay for legal representation and the legal expenses will be drawn from the estate. IOW, the children will inherit less. Defeating OP's purpose.

 An ex-wife has no rights of inheritance.  In England,  (unlike Scotland)  children have no automatic right of inheritance. 

OP has  shown there was no love lost between them , so its no suprise Ex devised a Will that prevents her getting one penny.  All his money is  now behind a firewall  controlled by his brother,  for  the ultimate benefit of the testator's  children.  

I'd say that Will was quite expertly devised by a Solicitor, to prevent any successful challenge.

I’m sure it was devised so I wouldn’t contest it that’s why I’m asking if its worth me contesting it. How would he be able to take money from the estate to pay for legal representation if it’s that actual money being contested?

Also we weren’t divorced when he died. I was still married to him but separated for a number of years.

Executors costs always come from the estate

OP speak to a probate solicitor, I'm pretty sure if you have dependant children (for example under 18) then you legally HAVE to make provision for them in your will, your children were his dependants so he should have made provision.

It's one of the few reasons that you can contest a will.

@LuluJakey1 op has been given correct and expert advice by @Collaborate, a highly experienced lawyer, up thread.
This is not AIBU, it is legal matters, where there are a few, experienced, lawyers willing to give advice. Randomly googling something and pasting the result without understanding it is not helpful.

I’m going to pay for legal advice. The reason for posting was to get some knowledge and understanding before doing this. As I’m sure you can tell every penny counts and I just had to pay for legal representation for the access hearing so not a lot of wiggle room. Thanks all.

I wish you all the luck in the World! Xx Some families are just poison.

I do wish that when someone has children under 18, if there is any funds when the parent passes that a monthly payment should be given like maintenance. When one parent dies that just disappears. My ex was very reliable with child maintenance for the year and a half before he died and it is really hard now as a single parent and carer to one of the children to keep our heads above water.
The family are being rather controlling with the money they could give a monthly payment easily not control it so mum has to go asking people who have been awful to her in the past.

I'm pretty sure if you have dependant children (for example under 18) then you legally HAVE to make provision for them in your will

You are wrong. There is no law that says you have to make provision. If you fail to make provision your dependent children may be able to use the Inheritance Act to challenge the will but it is far too late for the OP to do that.

you've already had someone upthread tell you that you can't contest the will, like they know that for a fact hmm and then a quick google says you can, you've got up to 12 years

@RoadworksAgain - The "someone upthread" is a solicitor and does know that for a fact. Your quick Google was wrong. 12 years is the time a missing beneficiary (i.e. someone who is named in the will but cannot be traced) has to come forward and claim their share - nothing to do with contesting the will.

Just a thought. Could the Child Maintenance Service get the money paid to us as maintenance? I’ve been googling a bit and it says they can contact the estate if there are arrears. If they have £18k of the estate which is essentially the children’s money and it isn’t being paid to them could that count as arrears?

Could the Child Maintenance Service get the money paid to us as maintenance

No. If you had been claiming maintenance via the CMS and he hadn't been paying they could claim the arrears from his estate. However, from your posts that isn't the case.

@LuluJakey1. It doesn't sound as though the children were mentioned in the will or beneficiaries. Therefore would be difficult to contest.

[quote RedHelenB]@LuluJakey1. It doesn't sound as though the children were mentioned in the will or beneficiaries. Therefore would be difficult to contest.[/quote]
It would have been easy had OP acted within 6 months of grant of probate. After 3 years it's impossible, though someone with a google search upthread might trump my law degree so who knows?

*There just seems to be something very unfair about this whole situation"
It isn't unfair at all and come across as very grabby.

My will also insured that if I passed away and my kids went to my ex, he wouldn't get a penny of it. The reason being that he has a history of appauling money management and being a very selfish men, he would have spent the money to suit him whilst trying to justify that all his decisions were benefiting the children.

My will left everything in a trust with both his mother and mine to manage to get the kids what they'd needed and him not having access to any of it. If he didn't earn enough, he had benefits to apply to for this and the Trust could have paid for anything extra.

It isn't relevant anymore as they are over 18 now, bit thank God for that option.

Your ex had his reasons for wanting it that way and that should be respected. I really hope it can't be contracted.

You can contest and should as you have a good case of the children are dependent ie under 18. Even with the trust fund the money can be advanced to you for their maintenance and benefit. Even though you are out of time you may get permission. I would take initial advice from a solicitor

You can contest

No she cannot contest. The time limit for contesting under the Inheritance Act is 6 months from the grant of probate. She is too late.

Even though you are out of time you may get permission

She won't. She has not acted promptly nor is there any trigger for a claim now. She did not start negotiations within the time limit and the estate has been distributed. See Berger v Berger [2013] EWCA Civ 1305.

Why are y you sending them bills for stuff the kids have? I'd be sending a standard letter monthly:

Dear Uncle Bastard

This month lovely child 1 needed new pants total cost X, receipt inc and lovely child 2 required new glasses and some marker pens, receipts inc. I look forward to receding any in respect of these essential purchases as sadly Useless Twat Ex is unable to look after his lids and left you to provide for them.

Dear Uncle Bastard

As you will be aware lovely children go back to school next month. The6 both require new trousers, I enclose the ones that are worn out. . Please can you replace them when they are with you as sadly etc etc

Why aren't!