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Fao Barmaid Or Other Clever Law Person

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Iluvspikey | 16:51 Wed 08th May 2013 | Civil
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Can you help please?


http://www.theanswerbank.co.uk/Law/Question1226352.html


This was the original question.

Now things have changed. The daughter is going to move out of her property (nothing to do with her mother, bought as a marital home with ex husband, bought him out when divorced) and is going to rent it out via an agent, and is going to live in Portugal in her mother's property and start a business there.
Would it be 'better' for the daughter to pay he mother 'rent' for the property in Portugal, after all she'll be getting it back when the will is read - the mother just want to make sure her son gets nothing. thank you

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As far as my knowledge extends, her mother can bequeath the whole lot to her daughter and "tempis" to the son. However, I understand it is better for her to leave a token something, very small, also with a damning comment as to why he is not to share in the bulk of the will as this makes any attempt by him virtually impossible.
She may need to check that the will is equally applicable in Portugal as here as many Catholic countries practice per capita distribution of a will.....he may be able to launch an attack there, so ensure that this loop hole is closed down.
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This is a bit from the other posting, the reason why

///
Thanks everybody - he - the son left home at 15 and hasn't been back to live there since (he's burgled the place and tied to burn it down with them inside) he's now 33 and living in a hostel, he can't keep a job he's an alcoholic and smokes weed all day according to my friend . The property is in the Algarve i believe.//

A very good reason to have defined per stirpes distribution for the UK, I would say. She could leave him the money to buy a box of matches for him.
Or, if generous, to pre-pay his funeral.
Unfortunately, I know nothing about Portuguese inheritance law. But let's assume for one minute that Portuguese law will follow UK law (as some european jurisdictions do when the testatrix is not ordinarily resident in that country). I assume your friend is ordinarily resident here.

I would suggest that she makes a Portuguese Will which leaves the entirety of the portuguese property to the daughter. If she is unable to do that I would suggest that the daughter does NOT pay rent (this will mean that if it comes to a claim under the Inheritance (Provision for Family and Dependants) Act 1975, the daughter has a better "needs" based defence.

Had she got a bit longer, I'd suggest transferring the property into daughter's name but you really need to do that more than 6 years prior to death to prevent it being "clawed" back under the anti avoidance provisions under that Act. She *could* transfer it to her absolutely now and write in the Deed that it is in consequence of her natural love and affection for her daughter and to ensure that the business she intends to run has a sound basis. that *might* work under anti avoidance provisions.

I didn't see the original thread otherwise I would have corrected one or two points. The son can make a claim on the estate under the above act whether or not he was dependent – all he needs to be is a son. I accept that the more independent the two are, the weaker the claim, but if you look at cases like Illot v Mitson (where an estranged daughter still got an award) nothing is set in stone. Whilst the testatrix can, as has been suggested, leave a side note saying why she does not wish her son to inherit (this can be taken into account by the Court), such letters are seen as a little self serving.

I do think the key to this could be some very well drafted attendance notes by a solicitor. They will always be considered by the Court.

It was suggested on the other thread that she should use an “in terrorem” clause (ie, I leave him x, but if he contests the Will he gets nothing). As was properly pointed out by Tony, unless a significant sum is left, this is unlikely to be worth doing. The difficulty is, IF she leaves him a sum, this may lead the Court to form the view that she felt under a moral obligation to do so (which broadly relates to one of the factors under the Act).

I think the best she can do is see a solicitor (preferably a member of the Probate Section of the Law Society or a STEP member) and get all her affairs in order. To look on the bright side, if the son has no money he won’t be able to afford a lawyer to take this on and given the legal aid cuts is unlikely to get Legal Aid. I doubt he would be able to afford a premium for After the event insurance either.
Why doesn't she just convey the property in Portugal, in accordance with Portuguese law, to the daughter now? The mother can evidently live without it. (There may be a capital gain on that disposal). That disposes of Portuguese law, which might give the son an inalienable right to a share of it on the mother's death, whatever her wishes. Remember that the local law, anywhere in the world, governs our courts when the real property (house, flat, land) is situated in that country.
[Crossed post with BM. ]
Fred, I'm not sure it is that simple. I've had recent and ongoing experience with almost a similar situation with Spanish law and that didn't work. I just don't know anything about Portuguese law (which is shocking since I am practically married to a half portuguese chap).
Meu Deus, BarEmpregada ..... você me surpreender
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Well of course BM's amazing DTC!

It's going to be a substantial amount of money involved, the mother's house in Saffron Walden is a 5 bedroomed 4 bathroomed place with a large conservatory and outdoor swimming pool, jewellery, money, cars, a horse or two........
Barmaid - what about going into a trust in her daughters name only - also a vehicle ré the inheritance tax. Couldn't she raise a trust here and one in Portugal?
(just the property obviously iluv)
I suspect that Portuguese law may not recognise the concept of a trust (a trust is a peculiarly english thing - you should see the fight I have had with the spanish authorities over a "trust" which looks like I shall have to go to Spain and give evidence).

Whatever she does now, will potentially fall foul of s10 of the Act. That is any dispositions made within the 6 years prior to death are voidable if one of their reasons was to defeat a claim under the Act - thus they can be clawed back (anti avoidance). I would be reluctant to advise going to the cost of doing this if the Court is going to treat it as assets under the estate as part of a s10 application.

I think the OP's friend really needs significant sensible advice from a suitably qualified lawyer. If she has that much money she can afford it - in my view she can't afford not to.
I would certainly agree with you as to the last point.

I don't know any good solicitors in Essex - I do in Oxfordshire/Berkshire/ Hampshire!
I know some excellent firms in Essex. But I do not feel able to recommend any particular firm on this site due to advertising issues and also due to my professional requirements.
Barmaid - what if you were to advise an intermediary who has nothing to do with it and over a temp e-address?
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Update, lady in question has found an English Lawyer who has worked in the Algarve for 30 years, seems as though the ladies husband (now deceased) had the daughters name put on the Portugese property, not the sons - (Something he did just after the son had tried to kill him and his mother by setting fire to their English house) but he died 5 months later so but this lawyer said he'll make sure things are a tight as a drum that side and won't have any claim.
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Further update, she also has copies of the original notes made by the trial judge where he got off on a technichality (when trying to burn the house down) with all the evidence the judge stated in the notes that there would certainly would have been a custodial sentence handed down most likely for attempted murder. Would this help at all do you think?

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