Spectator 2651 Saturday April 27Th 2024
Crosswords1 min ago
Inheritance=Legal Minefield
Does anybody know what legal right or redress that an adult has wrt his/her parents will IF in that will there is the distinct possibility that they may be bypassed and the ENTIRE estate could by given to 2 Grandchildren,
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Surely it is a persons right to leave their money/ property to whomever they want. I would not have expected to inherit as a matter of right, just because I was someones daughter. Equally I am not leaving anything at all to family members .. as is my right. A visit to a solicitor may give ways of challenging a will but I suspect that the costs of a legal challenge to a will that is properly written will be huge and if the challenge is unsuccessful leave the challenger with a large legal bill.
In the UK, so far as I know, where a will is left there is a minimum requirement to pass some very small component of an estate to one's child(ren) and it is to that small extent illegal to disinherit any child completely. However, the law probably varies between parts of the UK as to how that minimum is defined. In many European countries there are laws that give a surviving spouse and children much higher guaranteed rights to the estate. Worldwide there are no doubt countries where it is possible to totally disinherit any next of kin, for example the USA.
Under English law, nobody is ever obliged to leave a single penny from their estate to any of their relatives. (There are five beneficiaries of my will and not one of them is related to me). Anyone is free to leave their estate to whoever they want to.
In general, the courts will always (rightly) uphold that principle. However, upon the death of a testator, certain people (including the children of the testator) have the right to apply to a court for an order varying the terms of the testator's will on the grounds that the will failed to make 'reasonable financial provision' for them. It would then be up to the court to decide whether the provisions of the will should be varied.
However it should be made clear that simply saying "I was the testator's son/daughter, so therefore I ought to get something from their estate" is most definitely NOT a valid reason for having the terms of a will altered. Many people are determined that their offspring won't get a single penny from their estate and, as previously stated, the courts will generally respect their right to come to such a decision.
A court would be more likely to vary the provisions of a will where the claimant was, immediately prior to the testator's death, being maintained by them. So, for example, a disabled child of the testator, who was living with the testator and being supported by them up until the time of the testator's death (but who was omitted from their will) might well be able to get the will changed so that they continue to be supported from the testator's estate.
Similarly, if a student was part-way through a university course when their parent (who had been helping them fund their studies) died and then found that he/she had been omitted from their will, he/she might well be able to convince a court that they should continue to get funding from the estate.
As indicated above, it is entirely a matter for the court to decide as to what amounts to 'reasonable financial provision'. However a basic framework for the court's decision making is laid out within the relevant legislation (see Section 3), which you can read here:
http://
In general, the courts will always (rightly) uphold that principle. However, upon the death of a testator, certain people (including the children of the testator) have the right to apply to a court for an order varying the terms of the testator's will on the grounds that the will failed to make 'reasonable financial provision' for them. It would then be up to the court to decide whether the provisions of the will should be varied.
However it should be made clear that simply saying "I was the testator's son/daughter, so therefore I ought to get something from their estate" is most definitely NOT a valid reason for having the terms of a will altered. Many people are determined that their offspring won't get a single penny from their estate and, as previously stated, the courts will generally respect their right to come to such a decision.
A court would be more likely to vary the provisions of a will where the claimant was, immediately prior to the testator's death, being maintained by them. So, for example, a disabled child of the testator, who was living with the testator and being supported by them up until the time of the testator's death (but who was omitted from their will) might well be able to get the will changed so that they continue to be supported from the testator's estate.
Similarly, if a student was part-way through a university course when their parent (who had been helping them fund their studies) died and then found that he/she had been omitted from their will, he/she might well be able to convince a court that they should continue to get funding from the estate.
As indicated above, it is entirely a matter for the court to decide as to what amounts to 'reasonable financial provision'. However a basic framework for the court's decision making is laid out within the relevant legislation (see Section 3), which you can read here:
http://
legal minefield...
no I think Sir mean legal gold mine
this comes up quite a lot
and BC gives the same answer quite a lot ( retd will writer so he should know)
The recent case that you may be rthinking of is
Ilott v Mitson
https:/
which has caused a lot of ink to be spilt on the vexed question of
how important is it ( ie does it apply to lots or only a few ? )
You have no claim AT ALL as far as I can see until the parents die and the will/ wills come operative
The habit now they say is to write a letter explaining why the likely heir who has been disinherited - has been ( disinherited )
Basic rule in England and Wales is that if your parents wish to leave it all to Mrs Mopp down the road - they can
( Not so under the Napoleonic Code but blah blah blah we arent under that )
no I think Sir mean legal gold mine
this comes up quite a lot
and BC gives the same answer quite a lot ( retd will writer so he should know)
The recent case that you may be rthinking of is
Ilott v Mitson
https:/
which has caused a lot of ink to be spilt on the vexed question of
how important is it ( ie does it apply to lots or only a few ? )
You have no claim AT ALL as far as I can see until the parents die and the will/ wills come operative
The habit now they say is to write a letter explaining why the likely heir who has been disinherited - has been ( disinherited )
Basic rule in England and Wales is that if your parents wish to leave it all to Mrs Mopp down the road - they can
( Not so under the Napoleonic Code but blah blah blah we arent under that )
I know of a couple of testators who have included in their wills a a clause to the effect that if anyone takes any disagreement about the will to court, that person ipso facto loses his/her entire inheritance. This actually happened in one case a while back - a woman who belonged to a hugely wealthy family was left a million pounds, thought she should have got more, and took it to court in spite of the clause I mentioned above. She lost the lot.
If such a clause is found in the will which you refer to, you will be powerless to dispute it. Even if it isn't, the chances are vanishingly small, and the costs are likely to be prohibitive.
If such a clause is found in the will which you refer to, you will be powerless to dispute it. Even if it isn't, the chances are vanishingly small, and the costs are likely to be prohibitive.
That's correct in England, Wales & Northern Ireland, Karl.
In Scotland the children of a deceased person have 'legal rights' (irrespective of anything written in a will) to receive one third of the 'moveable estate' (or half of it if there is no surviving spouse of the testator).
The children must decide whether to accept what they've been given in the will OR tell the executors of the will that they want to receive their 'legal rights'. (They can't have both)
However, as indicated above, 'legal rights' only apply in respect of 'moveable estate' (which basically means everything except land and buildings). The testator is still free to leave his house(s) and land to whomever he chooses. He/she can thus still choose to leave his/her children nothing from what is likely to be the major part of the estate.
In Scotland the children of a deceased person have 'legal rights' (irrespective of anything written in a will) to receive one third of the 'moveable estate' (or half of it if there is no surviving spouse of the testator).
The children must decide whether to accept what they've been given in the will OR tell the executors of the will that they want to receive their 'legal rights'. (They can't have both)
However, as indicated above, 'legal rights' only apply in respect of 'moveable estate' (which basically means everything except land and buildings). The testator is still free to leave his house(s) and land to whomever he chooses. He/she can thus still choose to leave his/her children nothing from what is likely to be the major part of the estate.
In my experoence this is not an uncommon situation, and, along with some others of my generation, fall into the generation that misses out on inheritances for what seems a logical reason to me. If the adult children are in a fairly strong financial position then it's understandable that a grandparent would choose to bypass them and leave the bulk of their estate to the grandchildren to help them get a foot on the housing ladder and cope with student loan repayments.
Blimey Karl n BC - the right to a third
jus tertii
deffo not in England - Henry VIII allowed land to be devised by will ( having sold off the monasteries ) in 1540 - but as part of the renaissance England didnt get the reception ( = reception and incorporation of Roman Law prnciples into Law ) and Scotland did ....
one learns a thing a day
jus tertii
deffo not in England - Henry VIII allowed land to be devised by will ( having sold off the monasteries ) in 1540 - but as part of the renaissance England didnt get the reception ( = reception and incorporation of Roman Law prnciples into Law ) and Scotland did ....
one learns a thing a day
And the widow of one of my relatives learned about Scots Law of inheritance very suddenly, surprisingly and painfully when her husband died.
The children of his first marriage had predeceased him, but the grandson had (and exercised) the right to one third of the moveable property.....the bank and building society accounts, the furniture and the car.
He had quite deliberately left the grandson out of the will, but had not been made aware that he had these rights.
The widow got the house and two thirds of the rest.....money they had both worked very hard for for many years.
Needless to say the grandson is a waste of space.
The children of his first marriage had predeceased him, but the grandson had (and exercised) the right to one third of the moveable property.....the bank and building society accounts, the furniture and the car.
He had quite deliberately left the grandson out of the will, but had not been made aware that he had these rights.
The widow got the house and two thirds of the rest.....money they had both worked very hard for for many years.
Needless to say the grandson is a waste of space.
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