Invalid Will

[Abovethecloud]

If a person has died with a will but not updated it prior to their death since having additional children does this invalidate the original will?

No, only if they have married since.

But possibly dependent children might still have a claim.

You need proper legal advice.

Was the will signed, witnessed and dated,

The will is still valid unless they married, obviously this is not ideal! The legatees can agree to vary the terms to include their siblings which is like,y the fairest thing to do. And the cheapest.

No,having additional children has no bearing on a will made earlier.

Are the child beneficiaries named in the will?

Yes the will was signed witnessed and dated.
the deceased wasn't married so know the partner doesn't have a claim.
The will left everything to the eldest child as they were the only one born at the time the will was made. A second child was born later on however the will was never altered to include further children.

Which country did the person live in?

in England if the will is valid then having further children doesn’t invalidate it.

I wasn’t included in my mother’s will. I was the youngest child by 10 years (the unexpected accident) and wasn’t included as she had named my siblings by name rather than just saying “my children” or having a “and any future children…” clause.

I am not a lawyer but I think one possible issue would be how the will was worded.

I leave [amount] to be divided in equal shares between my beloved children Arthur and Bella

or

I leave [amount] to be divided in equal shares between my beloved children

The former could imply that any children born after Arthur and Bella are delberately excluded, but I suspect this would be open to challenge.

Are the deceased’s children still children or are they adults?

If I’m England and the older child is named then no the younger child doesn’t invalidate the will or have a claim. In Scotland it’s different.

They are both adults now. The first child was named in the will by full name.
It is in England

Is there a reason the will wasn't updated, do the siblings have a close relationship, would the first child share any inheritance. Is the partner the same parent to each child.

It’s very likely the will is still valid then as there’s no dependency.

The older child could do a deed of variation and split with their sibling, but there’s not any legal obligation to do so - and depending on their circumstances they may not be able to do so.

Yes, as above. It goes to the elder dc, though I think it should be shared (morally).

Agreed.

It's valid and so reliant on older child sharing. Ie doing a deed of variation.

But no obligation for older child to do anything.

(Assuming no ongoing maintenance being paid towards child 2)

Yes it’s valid, older child gets it unless they decide to share.

Thankyou

The additional child will likely have a strong claim against the estate, if older sibs are being pricks about it.

See a solicitor will experience in contentious probate.

The trouble with legal action in a case like this is that it can be extremely expensive and the outcome is uncertain (except that the relationship between family members is almost certainly going to suffer if it comes to a court case). Mediation is usually cheaper, quicker and possibly less nasty.

We had a case of this at work.

Fortunately the older named siblings agreed to a variation to include the youngest unnamed sibling.

Really hope it's resolved amicably

As a PP said, speak to a solicitor with experience in this area.

While, in general, it is probably unlikely that the other child will have a strong case it may be that they do have a case depending on the specific circumstances of your family.

The other child could make a claim for "reasonable provision". This will very much depend on the circumstances; consideration will be given to factors such as the size of the estate, the financial needs and resources of each party and any physical/ mental disabilities of the parties.

For example, there a was a court case last year, although this did involve a spouse rather than a child.

The couple had been married for a very long time and had two sons and four daughters (this is relevant). Everything was in the husband's name and, when he died, his will left everything to the two sons. The wife and daughters were excluded. The total estate was worth around £2 million.

The widow was left with just a state pension and nothing else, not even a lifetime trust in the property.

One of the sons wanted to share with the mother but the other didn't so it ended up going to court.

The mother was awarded 50% of the total estate. The daughters, who also had been left nothing were not awarded anything but I think that they didn't make any applications anyway.

In a different situation there have been quite a number of cases where people have been promised that they will be left something in a will and then act to their detriment in reliance on that promise, but then it turns out that they don't receive what they were promised in the will. These people have been successful in claiming against the estate.

These cases are often related to family farms. A parent or grandparent says something like "DC, if you stay and work the farm then one day all of this will be yours". So DC stay and work the farm for a very low wage for very many years in reliance on that promise from the parent.

However, when they pass away, it turns out that the farm has been left to other people or shared with siblings who have never contributed to the running of the farm.

In these cases, depending on the facts, the courts have often sided with the person left out of the will or not given the full amount that they were promised.

Just to add to the above, here are some more examples of children left out of a will who successfully challenged it. There is often an element of ill health or disability or using the money for a specific purpose involved in successful claims.

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

In the case of Noble v Morrison in Northern Ireland, his youngest daughter, who was then 53, still lived in the family home. The estate was worth £147k and, in addition, there was also a life insurance policy for £85k

However, she was not given a life interest in the family home and so the executrix could sell the family home at any time and she would be homeless.

The court ordered that if she gave up her share of the insurance policy payout then the family home should be transferred into the name of the daughter living there.

Noble v Morrison [2019] NICh 8

In "R Deceased" two sons aged 15 and 16 when their father died were awarded £118k and £68k from an estate worth approx £600k after they had been excluded.

Re R Deceased [2021] EWHC 936 (Ch)

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.

He had divorced their mother in 2007 and then in 2008 gave the two daughters £360k in cash between them as gifts.

Again, the court gave the daughters nothing:

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

This 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