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Leaving children (minors) and ex husband from will

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  • Leaving children (minors) and ex husband from will

    Looking for some advice.
    My friend was estranged from her family (parents, siblings) and divorced from her husband.
    She hasn't seen either her husband or children for a year or two (apart from by accident, complex reasons of domestic abuse, controlling manipulative husband etc) and hasn't lived with them for a couple of years either. Has her own place, changed her name by deed poll and no joint accounts etc.

    It was really important to her that her children (aged under 18) and ex husband / family get nothing from her estate (tho I'm guessing there won't be a large estate, just the principle).
    In her will, it doesn't say anyone is excluded, but clearly states everything is left to a non family friend who supported her during troubled times.

    Reading on-line it seems that her husband (if he hasn't started a new marriage or civil relationship) could still claim, is this true?
    Also, as her children are under 18 then they could too.

    Any advice to help us ensure her wishes (however they seem to an outsider) are honored?
    We're wandering whether it's worthwhile employing probate / legal services or doing it ourselves?

    Thanks in advance.
    Last edited by oggie; 15th February 2017, 17:09:PM.
    Tags: None

  • #2
    Re: Leaving children (minors) and ex husband from will

    tagging [MENTION=85500]Peridot[/MENTION] [MENTION=141]enaid[/MENTION] [MENTION=39710]des8[/MENTION] xx
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    • #3
      Re: Leaving children (minors) and ex husband from will

      It is extremely difficult, if not impossible, to word a will in such a way that a disgruntled relative cannot make a claim and contest the will.
      That does not mean that a claim will necessarily be successful.
      There are 5 main grounds for challenging a will, Plus rights available under the Inheritance (Provision for Family and Dependants) Act 1975
      Grounds are 1)forgery/fraud 2)undue influence on testator 3)capacity of testator 4)testator did not understand the will 5) will not properly executed

      you can write a seperate inheritance act statement at the time of writing your will, setting out your reasons for leaving certain people out. Whilst this is a legally recognised document which will be taken into account if the will is contested, it is not binding on the courts


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      • #4
        Re: Leaving children (minors) and ex husband from will

        Hi Oggie,
        Under the Inheritance (Provision for Family and Dependants) Act 1975, while the children are below 18 or, for example in tertiary education, or if any had a disability or were basically still dependants when your friend passed away, there would be a chance they would be successful in a claim against the estate.
        However the cost of bringing a claim is thousands, which if successful would be paid from the estate. If the value of the estate is small then it may be that they would be advised it was not worth pursuing a claim.
        It may be sensible to leave a letter with the will for the children explaining why they have been excluded. This would be seen by the Court if ever a claim were made and may assist the Judge in making any decision.
        Would it be worth considering leaving something to the children in trust, with named trustees managing it until they are older, so the ex doesn't get hold of it. Of course I don't know the whole situation but wonder whether it may be for other reasons, such as the ex getting hold of any inheritance rather than wanting to leave children out altogether? Just a thought.
        I am a qualified solicitor and am happy to try and assist informally, where needed.

        Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

        If in doubt you should always seek professional face to face legal advice.

        Comment


        • #5
          Re: Leaving children (minors) and ex husband from will

          Thanks both, really useful. She def didn't want anything left but the trust fund / age approach makes sense. And didn't realise the cost comes from the estate.

          Comment


          • #6
            Re: Leaving children (minors) and ex husband from will

            We have an option in our Wills to include an exclusion clause, politely naming people who the testator does not want to inherit anything. it would have a similar effect to the letter mentioned by Peridot but actually part of the will. A court would have a hard time ignoring it.

            Comment


            • #7
              Re: Leaving children (minors) and ex husband from will

              Thx James, apologies, just re-read my post, realised I didn't make clear that very unfortunately she passed away. So it's more a case of understanding what could happen and if there's anything we can do in advance and ensure her wishes are fulfilled. Or whether in cases like this, it's best to engage a solicitor as there maybe claims / complications etc.

              Comment


              • #8
                Re: Leaving children (minors) and ex husband from will

                As your friend has passed away, her executor should ensure that the estate is handled correctly, so that if the will is contested they, the executor do not become liable.

                If the will is simple, the estate small there is no reason to engage a solicitor so long as correct procedures are followed.
                Whether or not a solicitor should be engaged to assist in settlement will depend on how competent and confident the executor is.


                There are strict time limits for anyone wishing to contest a will.
                Is there a genuine fear that her estranged family will contestthe will?

                Comment


                • #9
                  Re: Leaving children (minors) and ex husband from will

                  Thanks, really difficult to say re: the family contesting. We all hope they'll finally leave her in peace. But based upon the questions they've raised after her death and their previous nature, I'd say it's certainly possible. I'm guessing if there's nothing we can do now but if the will is contested or a claim made then we'll need to engage a solictor?

                  Comment


                  • #10
                    Re: Leaving children (minors) and ex husband from will

                    Unfortunately yes.
                    Contentious litigation can be horrendously expensive, so if they do dispute the will, there might be nothing left at the end as the estate will be swallowed up by fees!

                    Comment


                    • #11
                      Re: Leaving children (minors) and ex husband from will

                      Let's hope that doesn't happen then. Is it true that the estate only pays legal fees if the person contesting is successful, if not then they pay?

                      Comment


                      • #12
                        Re: Leaving children (minors) and ex husband from will

                        Not quite that simple, but generally that is correct.
                        As in most legal cases the general rule in probate actions is that the costs follow the event. In other words the successful party to an action will recover its legal costs. However, in probate matters there are certain exceptions to the general rule regarding costs
                        .
                        1. Where the litigation has been caused by the conduct of the testator
                        Where the Will is ambiguous or causes confusion and it is necessary to have the court make an order as to the effect of the Will. Situations arise where the conduct, habits and mode of life of the testator give grounds for questioning his testamentary capacity. The costs in such cases are almost always paid out of the estate
                        .
                        2. Where the litigation has been caused by the conduct of principal beneficiaries
                        If a party wishing to uphold the terms of the Will is the principal beneficiary and it can be proved that he/she has by unreasonable or improper conduct induced the litigation that the court considers reasonable, the costs of the litigation should come out of the estate
                        3. Where circumstances afford reasonable grounds for opposing a Will
                        Where there are reasonable grounds for opposing a Will other than those mentioned above the unsuccessful party though not usually granted his costs out of the estate will not have to pay the other party’s costs.
                        4. Where notice to cross-examine has been given
                        Where a party to a Will has in his defence given notice that he will raise no positive case but merely insists on the Will being proved in solemn form and intends only to cross-examine the witnesses who attested the Will, such party is not liable to pay the costs of the other party unless it appears that there was no reasonable ground for opposing the Will. This does not mean that his costs will necessarily come out of the estate.

                        Comment


                        • #13
                          Re: Leaving children (minors) and ex husband from will

                          Thanks, that's pretty clear and I appreciate everyone's help. I don't feel so much in the dark now. I'll let you know how it goes so others can benefit, hopefully it'll be a quick update saying all went well :-)

                          Comment


                          • #14
                            Re: Leaving children (minors) and ex husband from will

                            Just an update, her estranged family are contesting under the 1975 Inheritance Act and also contesting the basis of the will (via raising a probate caveat). I've employed a solicitor and recommended the executor do the same to handle the probate caveat, I'll let you know how it ends up but it's looking highly likely the small estate will be spent on legal costs which is a real shame for my friend's memory.

                            Comment


                            • #15
                              Re: Leaving children (minors) and ex husband from will

                              Hi oggie,
                              I'm sorry to hear that. I'm glad you've got some legal advice and hope that things get sorted. It is really difficult where families are feuding. We're here if needed for support and thank you for letting us know.
                              I am a qualified solicitor and am happy to try and assist informally, where needed.

                              Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

                              If in doubt you should always seek professional face to face legal advice.

                              Comment

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