Can anyone advise re mutual will please?

[Willconcerns]

HI all
new account for this for obvious reasons
My widowed Mum remarried about 30 years ago, happy relationship, sadly she passed 6 years ago

She had a mutual will with her second husband. It naturally gave the assets to him upon her death. Then on his death the estate would be split 50/50 between the two parties' original kids ,no problem. On the husbands side he wanted to pay a substantial sum to one of his kids from his 50%, before splitting the balance across his kids, again no problem, his choice

We kept in touch with the husband but he's close to his family location wise and also vulnerable with covid period, so not as much as we would have liked

So the husband died last year. Turns out before he died he changed his will. He did this shortly after my mum died and he had sold their house and downsized and freed up much capital. Within these changes I was also removed as an executor and his kids became the executors

I have got a copy of his revised will and it seems similar except the change of executors, and the substantial sum payable to one of his kids is no longer mentioned

The estate is now settled and I have received much less than I thought with no supporting information. If you consider the sale of the downsized house less funeral costs and house sale costs its probably slightly low. But if you take into account rising house prices over the last 6 years, and the capital released from the original house sale it feels about 40/50k short at least

My DH and I suspect the capital was used before death to pay the substantial sum to his favoured child, meaning its come out of the estate before it was split 50/50, ie out of my mums share as well. This isnt good!

What can I do - how do I approach this? My understanding is that under a mutual will you can change executors after one parties' death but not make substantial gifts before death. How can we handle this? what can we legally obtain etc?

All advice most gratefully received and thanks for reading!

The assets were left to your SD and he then decided what to do with them. I'm not sure what you would have a claim on if the assets left when he died were distributed according to his will.

He could have changed the will to only leave his assets to his children.

I’m sorry for your losses.

Did they definitely have a mutual will or did they just have mirror wills?

I am not an expert but my understanding is that a mutual will cannot be changed by the surviving party, so if they did have one of these then you should take legal advice.

However if they just had mirror wills, then once the first party dies and leaves everything to the second party, the second party can then do what they like.

As I said though I’m not an expert so probably worth speaking to a solicitor with a copy of your mum’s will to understand the situation.

Hi yes have triple checked and mutual wills not mirror wills...

Hi. Mutual wills aren't supposed to change after one party's death

Confused here.

Are @Willconcerns and @sleepwouldbenice same person?

Not good at this name change am I !

You are entitled to ask to see a copy of a full statement of all of the estate assets and liabilities including executors expenses.

But I'd see a specialist solicitor before moving on this. They may have advice on how this can be most effectively done.

Sounds like the original wills weren't properly done. What sounds as if should have happened were will trusts set up on first death, leaving a life interest to the other spouse, but then the asset share being paid to first deceased's daughter on second death. Will trusts can't be changed after death and have to stand.

Sounds more like an informal (I'll do this if you promise to do that) which doesn't have force of law if the spouse wants to change their will.

Can you go back to the solicitor who drafted the wills to ask their advice?

All good thoughts thanks

If these were mutual wills it does have the force of law. Any changes OP's step-father made to his will after OP's mother died should have been ignored. The substantial sum that was originally left to one of his kids should therefore have been paid.

Assume you are in England
Ask for a copy of the account
If you are not happy after that take specialist legal advice

Mutual wills are completely different to mirror wills and more akin to a contract between the parties agreeing that neither party can change the will without the consent of the other. The survivor cannot change the will after first death.

Some wills contain a clause specifically stating they are not intended to be mutual wills.

Who dealt with step dad's estate... If solicitors did and didn't pick up the mutual wills point then possibly could be a professional negligence claim against them.

Assume step dad lived in England/Wales and not Scotland? Laws differ according to where they lived.

Thanks again for comments

Original solicitors don't exist any more

In terms of dealing with the estate when my mum passed. Could you please explain this more.? Basically there was nothing to do as it all moved to husband? Should something else have happened?

Thanks

No, nothing else should have happened. If you are referring to LemongrassLollipop's post, the question is about dealing with your stepfather's estate. If there was a mutual will, that should have determined how the estate was distributed. The substantial bequest left to one of his children should have been given, notwithstanding the subsequent will that didn't mention any such bequest.

Hi again

Just for clarity sorry. The substantial payment to his favoured child, per the original mutual wills, would only have been due on the second death, from his half of the estate at that time

The problem being we think the payment has been made earlier than this, therefore the total value of the estate and each half for each family has been impacted, rather than it coming out of one half

Hope this is clearer

Thanks

Yes, I understood that. Provided the child has only been paid the amount specified in your stepfather's mutual will, that is not a problem. The shares for others have not been impacted. However, if they have been paid twice, it may be a problem.

For example, if the original will said they received £50,000 with the residue being split between the remaining children, it doesn't matter whether they were paid the £50,000 before or after death provided it was paid and provided they did not then also receive a share of the estate. However, if they have received £50,000 and a share of the estate, that may be a problem.

On the other hand, if the will said they received £50,000 with the residue being split between all the children, including the favoured child, it doesn't matter whether they were paid the £50,000 before or after death. However, if it was paid before death and they have then been paid a further £50,000 from the estate, that may be a problem.

have you got a copy of your mums will? it could be that your stepfather made a new will unbeknown that he actually had a mutual will. Unless he informed the person drawing up the new will, they wouldnt know.

https://www.thelawsuperstore.co.uk/wills-probate/help-and-advice/joint-wills-couples-mutual-wills-mirror-wills#:~:text=Furthermore%2C%20while%20mutual%20wills%20are,alive%20and%20have%20testamentary%20capacity.

Hi

It does matter if they were paid before second death though. Eg with assets of 100k and specified payment of say 30 k

Eg
Per mutual will on death 50 goes to wife's family, 50 to his family. Of the his family then have 20 left after special payment

Per the way it might have been done. 30k spent before death so 70 left. Each family gets 35k each to split, so wife's family now has less

Hi yes we have copied of both original wills and the latest husband's will

I agree the second solicitor might not have known but he did, and I am pretty sure his family did too!

Your first example only works if the will specified that the money was to be split 50/50 between the families with the favoured child getting £30k of his family's portion. However, if it specifies £30k to the favoured child with the remainder split 50/50, your second example would apply regardless of when the money was paid. Without knowing the exact wording of the will it is impossible to be sure.

Hi thanks

Yes the original does say that there is the initial 50/50 split, then the payment from their half

Thanks

In which case you need to get a copy of the estate accounts from the executors and consult a lawyer who specialises in contested probate.

Hi thanks

Agreed. We are going to ask and take it from there.

If for some reason the house sale value was very low then that might be part of it given current economic situation, but I doubt it. Then the questions about why the savings have fallen so much would have to start....

Hate messes like this, after such a loving relationship which supported both people who were widowed I hope it doesn't lead to a fall out!