My Fathers Will

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My father passed away in 2010. His second wife is 85 and still living in the house they bought. They made a Will (both single wills because of possible care home fees) My father's half was left to myself and two sisters, possibly grandchildren. Now my father has passed away my stepmother is saying we will not get anything and everything will go to HER two adult children, can she do this? We are not in contact anymore as things were not good between us. We are worried that she may pass away and we will not know and her children will get everything. Can she give everything to her children? Is there anything we can do?

The first thing to do would be to obtain a copy of your late father’s Will. A copy of the Will would shed light on a number of your queries. If you do not have a copy of the Will or are unable to obtain a copy from your stepmother, it is possible to obtain a copy from the Probate Registry provided a Grant of Probate was obtained following your late father’s death.

Your late father and stepmother would have made individual Wills. Regardless of marital status, an individual has their own Will but it may be that your late father and stepmother made mirror-image Wills.

What happens if your father and stepmother made Life Interest Trust Wills?

Without seeing the Will is it difficult to say exactly what has happened but it is possible, due to your late father and stepmother having children from previous relationships, that they were advised to prepare Life Interest Trust Wills. Life Interest Trust Wills are also a useful care home fee planning tool. These sorts of Wills are not limited to but are frequently used by married couples and are more frequently used in second marriage situations such as this. Their objective is to ensure that the surviving spouse is taken care of and benefits from the deceased’s assets during their lifetime but ultimately protect and attempt to preserve those assets for the benefit of named beneficiaries who are likely to be the children of the first spouse to die. If this is what your late father’s Will say, then your stepmother is rightly enjoying your late father’s assets by living in the house but in the event of her death, those assets revert back to your late father’s Will and pass in accordance with the terms of his Will. It is, therefore, possible that you and your two sisters are the ultimate beneficiaries of your late father’s Estate but your respective entitlement to his assets cannot be realised until the death of your stepmother.

If the assets have passed into trust, they do not belong to your stepmother and could not be gifted by her to her children. Furthermore, as they do not belong to your stepmother, should she go into care and is financially assessed (to establish whether she is to fund her own care or not), the assets that once belonged to your late father could not be taken into account in this financial assessment. The only thing that could be taken into account is any income being generated from those assets, as your stepmother would be entitled to the Trust income.  

What happens if your father left everything to your stepmother?

Having said that, it is, of course, possible that your late father’s Will left everything to his second wife outright, with his Estate passing to you and your two sisters (and possibly grandchildren) in the event of his second wife predeceasing him. In which case, as your late father has been survived by his second wife, the Estate passes to your stepmother absolutely. As a result, your late father’s assets become your stepmother’s assets with which she can do whatever she likes. It is, therefore, possible for her to leave her entire wealth (including your late father’s) to her two adult children. 

What to do next?

If it is established that the second scenario is what has happened, it might have been possible for you to make a claim against your late father’s Estate under statute. Statute provides for dissatisfied individuals to make a claim against an Estate where the Will does not make sufficient provision for that individual in all the circumstances. This legislation is, however, limited to a category of individuals. Children and spouses are included in this category. It is important to note, however, that there is a 6 month time limit from the date of Probate or Letters of Administration to make a claim. Due to the time that has elapsed following your late father’s death, it is unlikely that a claim would be successful in this situation although you can ask the court to consider a claim out of time.

The absolute first thing to do though is to obtain a copy of the Will.

Article written by Holly Algar, Solicitor in the Private Client Team of Trethowans. A colleague of Grant Cameron, a fellow Resolution member.

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