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Avoiding claims on a parents' estate

including wills and probate
MyNameIsUrl
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Avoiding claims on a parents' estate

#408560

Postby MyNameIsUrl » May 1st, 2021, 12:27 pm

Prompted by CK’s fascinating post on estate claims, I’d like to ask what can be done in advance to avoid children not included in a will being able to make a successful claim on their parents' estate.

I know an elderly couple who have mirror wills which leave everything to the surviving spouse, and then to a niece. The adopted daughter of the couple has not been left anything in the will. The decision has not been made lightly or spitefully but is a reflection of the relationships between the people involved.

Is there any action that the couple can do now to emphasise their wishes or forestall any potential future claims?

This is a practical issue for me – I am named as executor so I will have to deal with any claims made, and as I happen to be married to the niece I would not be viewed as being impartial in dealing with the claims.

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Re: Avoiding claims on a parents' estate

#408561

Postby Dod101 » May 1st, 2021, 12:39 pm

Presumably an adopted daughter stands in the same place as a biological daughter and assuming that is the case, as has already been said, the only claim a child could have on her parent's estate (under English Law) would be one of dependency. If that does not arise then that should be the end of the matter, I would imagine. The adopted daughter might feel aggrieved but that is another matter entirely. As an Executor you simply have to follow the instructions of the Will. You cannot avoid claims on a parents' estate. Anyone can claim that feels like it but most of these would be rejected out of hand.

That's my understanding anyway.

Dod

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Re: Avoiding claims on a parents' estate

#408562

Postby Lanark » May 1st, 2021, 12:43 pm


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Re: Avoiding claims on a parents' estate

#408567

Postby Charlottesquare » May 1st, 2021, 1:16 pm

Dod101 wrote:Presumably an adopted daughter stands in the same place as a biological daughter and assuming that is the case, as has already been said, the only claim a child could have on her parent's estate (under English Law) would be one of dependency. If that does not arise then that should be the end of the matter, I would imagine. The adopted daughter might feel aggrieved but that is another matter entirely. As an Executor you simply have to follow the instructions of the Will. You cannot avoid claims on a parents' estate. Anyone can claim that feels like it but most of these would be rejected out of hand.

That's my understanding anyway.

Dod


Undue influence etc is maybe a possible ground of contention, especially with niece's husband as executor. I would ensure the will is drafted by and in front of a solicitor who ensures and records that he/she ascertained that the couple understood what they were doing when they executed the wills.

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Re: Avoiding claims on a parents' estate

#408576

Postby Lootman » May 1st, 2021, 1:41 pm

Lanark wrote:This seems to cover the options
https://www.hunterslaw.com/preventative ... -disputes/

I like that idea of a "no contest" clause in a Will, although of course the whole problem here is a court modifying a Will, and so presumably such a clause could be annulled as well.

I come back to my idea in the other topic i.e. distributing most of your estate whilst you are still alive, to whomever you want, and render the entire issue moot. You should have the same freedoms to distribute your assets upon death as you do whilst alive.

That does of course require some sense of knowing when your time is up. But it may have other benefits as well e.g. reducing IHT or avoiding probate. In particular, if you can avoid probate then the entire question of someone challenging the process could be bypassed.

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Re: Avoiding claims on a parents' estate

#408629

Postby AF62 » May 1st, 2021, 6:25 pm

Lootman wrote:
Lanark wrote:This seems to cover the options
https://www.hunterslaw.com/preventative ... -disputes/

I like that idea of a "no contest" clause in a Will, although of course the whole problem here is a court modifying a Will, and so presumably such a clause could be annulled as well.


Similar, but not the same, I had read a while back a suggestion that if you didn't want to leave anything to someone who might be expecting something, to specifically leave them a nominal amount (say £100) to remove the argument that you had forgotten them when your will was written.

No idea whether such an idea 'has legs' or not.

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Re: Avoiding claims on a parents' estate

#408635

Postby ReformedCharacter » May 1st, 2021, 6:51 pm

Lanark wrote:This seems to cover the options
https://www.hunterslaw.com/preventative ... -disputes/

One of which is a 'letter of wishes' which was the option used by my mother. My sister's husband was manipulative and a bent solicitor who had been convicted of misappropriating clients' funds. The letter of wishes stated something to the effect that whilst they were married her estate would remain within a discretionary trust. In fact her whole estate was included within the discretionary trust which caused me more than a little annoyance because if it were not for my sister's husband the estate would just have been divided up with no difficulty. I strongly disliked the fact that a group of trustees had the power to act with 'discretion' as far as I was concerned. As it was, the trustees paid out my share without demur albeit taking an extortionate amount of time and money. My sister planned on divorcing anyway but died before that happened. Consequently, those of her children who were not yet adult had their inheritances retained within the trust. I made an unsuccessful complaint on behalf of my niece who was just about to go to university when I found that her share had been invested in some sort of expensive fund, some of which had to be sold thereafter to pay for her university course and accommodation. What particularly annoyed me is that the trustees had not contacted her to ascertain her plans. Fees all round.

RC

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Re: Avoiding claims on a parents' estate

#409081

Postby Clitheroekid » May 3rd, 2021, 7:51 pm

Lootman wrote:I like that idea of a "no contest" clause in a Will, although of course the whole problem here is a court modifying a Will, and so presumably such a clause could be annulled as well.

No, that wouldn't happen. Although the Court does have the power to override a provision in a Will - for example a legacy being conditional on the beneficiary committing a crime - it was decided many years ago that a `no contest' clause is quite legitimate.

AF62 wrote:I had read a while back a suggestion that if you didn't want to leave anything to someone who might be expecting something, to specifically leave them a nominal amount (say £100) to remove the argument that you had forgotten them when your will was written.

No idea whether such an idea 'has legs' or not.

It doesn't. Except for family and dependants, as mentioned in the other thread, nobody has the right to be left anything in a Will, so any argument based on the testator having simply forgotten to include them would be doomed to fail.

And if they do have a valid claim, for example a wife or minor child, merely leaving them a token legacy wouldn't affect their right to pursue that claim.

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Re: Avoiding claims on a parents' estate

#409087

Postby scrumpyjack » May 3rd, 2021, 8:01 pm

Clitheroekid wrote:
Lootman wrote:I like that idea of a "no contest" clause in a Will, although of course the whole problem here is a court modifying a Will, and so presumably such a clause could be annulled as well.

No, that wouldn't happen. Although the Court does have the power to override a provision in a Will - for example a legacy being conditional on the beneficiary committing a crime - it was decided many years ago that a `no contest' clause is quite legitimate.


Well it did happen in the case where I was executor. The High Court judgement replaced the original Will with a 'Notional Will' in accordance with para 19(3) of the 1975 Act. So the original Will was discarded entirely and replaced with the 'Notional Will' in the High Court Judgement after a 1975 Act legal action that took 4 years. It was all very stressful and rich pickings for the lawyers sadly.

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Re: Avoiding claims on a parents' estate

#409090

Postby Clitheroekid » May 3rd, 2021, 8:09 pm

scrumpyjack wrote:
Clitheroekid wrote:
Lootman wrote:I like that idea of a "no contest" clause in a Will, although of course the whole problem here is a court modifying a Will, and so presumably such a clause could be annulled as well.

No, that wouldn't happen. Although the Court does have the power to override a provision in a Will - for example a legacy being conditional on the beneficiary committing a crime - it was decided many years ago that a `no contest' clause is quite legitimate.


Well it did happen in the case where I was executor. The High Court judgement replaced the original Will with a 'Notional Will' in accordance with para 19(3) of the 1975 Act. So the original Will was discarded entirely and replaced with the 'Notional Will' in the High Court Judgement after a 1975 Act legal action that took 4 years. It was all very stressful and rich pickings for the lawyers sadly.

You misunderstood my reply. I was saying that a Court wouldn't annul a no contest provision in a Will.

Of course they can and sometimes do set aside the entire Will in the case of a successful Inheritance Act application.


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