Your Will, your rights

17 Nov 2016

“My oldest brother wants to see our parents’ Wills & mine to see what is left to him so he can plan for his future & make sure his children are okay. He has his own house, pension & is on his second marriage also taken early retirement due to ill health. Both our parents are poorly & I'm their main carer, I still live at home & dropped my hours so I can do more for them. I do not have a pension so mum & dad have made sure that the house comes to me, my other brother is all for it but the other thinks he should get his share & if he doesn't like what's in the Will he wants to change it. He's also said that if I get married my Will would be invalid. Is this true or is it just people on their second marriage? Please help me because he's making my dad ill by going on about it & my mum is in hospital getting over an op for bowel cancer.”

The first and most important point to bear in mind is that a person’s Will is a private document and no one else has the right to demand to see it. You or your parents have no obligation to show your Wills to your brother. After someone passes away only their executors have the right to see the Will and, it only becomes a public document when the Grant of Probate (the document that executors usually need to allow them to deal with estate assets) is issued by the court.

If someone doesn’t like the contents of someone else’s Will then there is nothing they can do to force someone to change their Will. In fact, if your brother were to pressure your parents into changing their Wills then, this could be a ground for challenging their Wills after their death as it may be able to be shown that he exerted undue influence over them.

Wills can only be challenged after death. Your brother could try and bring a claim to say that he has been insufficiently provided for and as a child of your parents he could bring this claim. However there is no guarantee it would be successful as the court looks at a wide range of factors including the claimant’s financial situation, the financial situation of the beneficiaries that would lose some of their inheritance if the claim were to be successful, the size of the estate and whether the claimant has a disability (either physical or mental).

An alternative claim your brother could bring after your parents’ deaths is either that they did not understand the Wills they made so they should be set aside and/or they were unduly influenced into including the provisions they did in the Wills. To try and provide more security for your parents that their wishes will be upheld (even if challenged), it may be worth your parents having a note prepared to be stored with their wills setting out their reasons for leaving more to you than your brothers. If your parents did not have their Wills prepared by solicitors it would be sensible for them to take legal advice, not only to ensure that their Wills are as watertight as possible but also because the solicitor should discuss the Wills with them with no one else present and record their reasons for why they are leaving their estate to you and your siblings in unequal shares. This could all be useful evidence if a claim is later brought.

Unfortunately there is nothing to stop someone trying to bully you about the contents of your Will but to avoid aggravation for your parents, it might have been better if they had not told him about the Will in the first place. This wouldn’t have stopped the potential problems after their death but may have saved them the aggravation during their lifetimes. If the bullying is such that it amounts to harassment your parents could consider taking out an injunction to stop your brother contacting them but this would be a drastic option and could damage their relationship altogether.

Turning to your Will, all the above applies except that your brother would only be able to bring a claim for unreasonable provision if he is financially dependent on you. This is because only certain categories of people can automatically bring claims and siblings are not among them.

Your brother is quite correct however that if you get married (or enter into a civil partnership) then your Will be revoked. The only exception is if your Will makes it clear that it is not to be set aside on the event of marriage and to do this it must name the person you are intending to marry.

Author

Mihiri Gajraj

Partner

Wills, Trusts and Probate

Email me

02380 820544