Question on making a will

Queen-Mise

I was with my mother yesterday and she was talking about her will. At the moment she has everything divided six ways (between six kids). Anyway she was saying she wasn't really happy with it - that if someone wanted to live in the family home, then other siblings could force them to sell it for their share.

Earlier I was saying, that I would love to live back in the family home. And that if anything happened either one of my parents, that my family (my husband, & kids) would be the most logical ones to move back and look after the remaining parent.
My mother is very anxious that one of us lives in the family home.

So she is now talking about leaving the family home to my husband & I, and dividing the savings six ways. The house is worth approx 100k and savings between 50 - 100k.

I was telling this to a friend of mine this morning. And she said that if my mother did this that it is leaving open a minefield - that any of my siblings could contest the will because things weren't left equal.
Is my friend right in this?

Kosseegan

Queen-Mise wrote: »

I was with my mother yesterday and she was talking about her will. At the moment she has everything divided six ways (between six kids). Anyway she was saying she wasn't really happy with it - that if someone wanted to live in the family home, then other siblings could force them to sell it for their share.

Earlier I was saying, that I would love to live back in the family home. And that if anything happened either one of my parents, that my family (my husband, & kids) would be the most logical ones to move back and look after the remaining parent.
My mother is very anxious that one of us lives in the family home.

So she is now talking about leaving the family home to my husband & I, and dividing the savings six ways. The house is worth approx 100k and savings between 50 - 100k.

I was telling this to a friend of mine this morning. And she said that if my mother did this that it is leaving open a minefield - that any of my siblings could contest the will because things weren't left equal.
Is my friend right in this?

It is open to the child of a deceased to make an application under S117 of the Succession Act claiming that they were not adequately provided for. That is so even if they were left an equal share of the estate with other siblings. Professional advice is needed as there are many factors involved. There is no reason why the house can't be left to you provided you pay each of your siblings a sum of money. There are a number of ways in which a will could be structured to help avoid a S117. In many cases the costs of the S117 are taken from the estate so the result is the house could be sold to pay the costs.
From what you have posted it seems that the easiest thing to do would be leave the house to the surviving parent who can invite you in as guests with even steven after the last parent dies.

Cody Pomeray

The answer is a qualified no.

It is not true that a parent must necessarily split his or her estate evenly between their children.

Under Section 117 of the Succession Act 1965, a Court may intervene whereby a parent has clearly failed to make adequate provision for an offspring, taking their means and prospects into account, and taking into account the sacrifices made by the offspring in caring for the parent and his or her affairs.

However, there is a very significant burden of proof to be overcome by the applicant in any such case.

If a child were to move in and care for their parent in the family home, it seems especially difficult to deny that child the right to inheritance of the home, especially where significant financial bequests were made to the other children.

I think there would have to be some extraordinary set of circumstances, to the point of a child being destitute or somehow incapacitated for them to claim under Section 117 of the 1965 Act.

In short, no, your friend is very unlikely to be correct.

Kosseegan

Cody Pomeray wrote: »

The answer is a qualified no.

It is not true that a parent must necessarily split his or her estate evenly between their children.

Under Section 117 of the Succession Act 1965, a Court may intervene whereby a parent has clearly failed to make adequate provision for an offspring, taking their means and prospects into account, and taking into account the sacrifices made by the offspring in caring for the parent and his or her affairs.

However, there is a very significant burden of proof to be overcome by the applicant in any such case.

If a child were to move in and care for their parent in the family home, it seems especially difficult to deny that child the right to inheritance of the home, especially where significant financial bequests were made to the other children.

I think there would have to be some extraordinary set of circumstances, to the point of a child being destitute or somehow incapacitated for them to claim under Section 117 of the 1965 Act.

In short, no, your friend is very unlikely to be correct.

This is extremely dangerous comment.
Without knowing the entire family history and how the various children of the family were traeted it is impossible to say whether a S117 would succeed. Even if a S117 failed there could be costs implications for the estate.

Queen-Mise

Cody Pomeray wrote: »

I think there would have to be some extraordinary set of circumstances, to the point of a child being destitute or somehow incapacitated for them to claim under Section 117 of the 1965 Act.

One of my siblings is arguably destitute. Albeit by his own creation. He is mid forties and has been in and out of prisons his whole life and is an drug addict and alcoholic.

Would he have a case in this circumstance bearing in mind that a lot of his situation is his own creation and secondly because of his age.

coylemj

Queen-Mise wrote: »

One of my siblings is arguably destitute. Albeit by his own creation. He is mid forties and has been in and out of prisons his whole life and is an drug addict and alcoholic.

Would he have a case in this circumstance bearing in mind that a lot of his situation is his own creation and secondly because of his age.

Regardless of their current situation, if the six kids were all given the same level of upbringing in terms of care, food, education etc. such that they all had the same opportunity to go out into the big bad world and exploit their God-given talents, then it's unlikely that any of them could bring a S.117 case in which case your mother can leave her estate to whoever she please - the Cats and Dogs home if she wants to.

Cody Pomeray

Queen-Mise wrote: »

One of my siblings is arguably destitute. Albeit by his own creation. He is mid forties and has been in and out of prisons his whole life and is an drug addict and alcoholic.

Would he have a case in this circumstance bearing in mind that a lot of his situation is his own creation and secondly because of his age.

Well there is a huge amount of judicial discretion in cases like this.

I would disagree with coylemj and say there may be a case for a 'destitute' son to take, yes.

His case would be strengthened if he had no means, if he had no prospects, and if he were in serious need of accommodation. It would further be strengthened if the offspring inheriting the property is already a property owner, and if the 'destitute' son could credibly argue that the parent had failed to make adequate provision for him in life.

Shelflife

Cody Pomeray wrote: »

Well there is a huge amount of judicial discretion in cases like this.

I would disagree with coylemj and say there may be a case for a 'destitute' son to take, yes.

His case would be strengthened if he had no means, if he had no prospects, and if he were in serious need of accommodation. It would further be strengthened if the offspring inheriting the property is already a property owner, and if the 'destitute' son could credibly argue that the parent had failed to make adequate provision for him in life.

Ok serious question here.

5 sons all college educated and all in their 40s. 4 of them doing well for themselves and one who by his own actions is unemployed and living in rented accomodation with a drink/drugs problem.

Parents die in tragic accident and leave all their assets to the 4 well to do off spring and nothing to the black sheep as they have fallen out over the years.

Cody are you saying that the blacksheep has a reasonable/winnable case if he was to dispute the will?

Cody Pomeray

Shelflife wrote: »

Ok serious question here.

5 sons all college educated and all in their 40s. 4 of them doing well for themselves and one who by his own actions is unemployed and living in rented accomodation with a drink/drugs problem.

Parents die in tragic accident and leave all their assets to the 4 well to do off spring and nothing to the black sheep as they have fallen out over the years.

Cody are you saying that the blacksheep has a reasonable/winnable case if he was to dispute the will?

This is slightly different. The fact that he has attended college (presumably at his parents' expense?) would suggest he has prospects, and that by providing him with an expensive education, his parents have made proper provision for his future compatible with the actions of 'just' parents. So perhaps not.

In the other case, I am speaking specifically about someone who is destitute and has no real prospects.

ResearchWill

Queen-Mise wrote: »

I was with my mother yesterday and she was talking about her will. At the moment she has everything divided six ways (between six kids). Anyway she was saying she wasn't really happy with it - that if someone wanted to live in the family home, then other siblings could force them to sell it for their share.

Earlier I was saying, that I would love to live back in the family home. And that if anything happened either one of my parents, that my family (my husband, & kids) would be the most logical ones to move back and look after the remaining parent.
My mother is very anxious that one of us lives in the family home.

So she is now talking about leaving the family home to my husband & I, and dividing the savings six ways. The house is worth approx 100k and savings between 50 - 100k.

I was telling this to a friend of mine this morning. And she said that if my mother did this that it is leaving open a minefield - that any of my siblings could contest the will because things weren't left equal.
Is my friend right in this?

Your premis is based on a surviving parent, in this case your father, what is he going to get in the will. Remember he is the only person with a legal right to inherit. Also the house may not be your mothers to leave to anyone if her husband is alive as he may depending on the type of ownership become the full owner. Your mother and father need to get proper legal advice on this issue.

valleyoftheunos

Cody Pomeray wrote: »

Well there is a huge amount of judicial discretion in cases like this.

I would disagree with coylemj and say there may be a case for a 'destitute' son to take, yes.

His case would be strengthened if he had no means, if he had no prospects, and if he were in serious need of accommodation. It would further be strengthened if the offspring inheriting the property is already a property owner, and if the 'destitute' son could credibly argue that the parent had failed to make adequate provision for him in life.

Incorrect points here, the relevant question in a s117 application is whether the Testator made adequate provision for the Child during the testator's life, with full accordance to the Testator's means. a child who was provided for, has subsequently become destitute and is not included in the testator's will will not be successful in a S117 application simply because of his destitution.

Shelflife wrote: »

Ok serious question here.

5 sons all college educated and all in their 40s. 4 of them doing well for themselves and one who by his own actions is unemployed and living in rented accomodation with a drink/drugs problem.

Parents die in tragic accident and leave all their assets to the 4 well to do off spring and nothing to the black sheep as they have fallen out over the years.

Cody are you saying that the blacksheep has a reasonable/winnable case if he was to dispute the will?

I woud think not, the courts trust testators to decide how best to dispose of their assets upon death. I recall one decided case, (the name unfortunately escapes me) where exactly such a circumstance came about. the Court held that the Black Sheep's parents had decided that money and windfalls such as an inheritance were not good for him and for that reason had chosen not to leave him a legacy.

Queen-Mise

ResearchWill wrote: »

Your premis is based on a surviving parent, in this case your father, what is he going to get in the will. Remember he is the only person with a legal right to inherit. Also the house may not be your mothers to leave to anyone if her husband is alive as he may depending on the type of ownership become the full owner. Your mother and father need to get proper legal advice on this issue.

I was relating a conversation I had with my mam. She will obviously talk with my father and see if he agrees. And also no decisions have been made, and she hasn't talked to her solicitor. Her solicitor might disagree and explain why it is a bad idea.

She wants to carry on the 'homestead' with our name, (as in the family name). And its my fathers family (they have lived on the site for nigh on 300 years (according to my mam, I wasn't aware that it was that long).

I'm the youngest, with also the youngest children (as in mine are still primary school-going). Bar the one brother the rest of the siblings are settled with kids nearly reared/finished college. And they are all professionals with good jobs, homes paid for, etc.

And of course, both parents are still alive at the moment. My dad is nearly 80, with a very dodgy heart. So speculation really, both could still be here in 10 years time, and my kids would be nearly raised and the entire situation could/would be different.

Ken.

Would signing the house over to one child while the parent/s are alive be less hassle than waiting for death and a will?.

coylemj

Cody Pomeray wrote: »

Well there is a huge amount of judicial discretion in cases like this.

I would disagree with coylemj and say there may be a case for a 'destitute' son to take, yes.

His case would be strengthened if he had no means, if he had no prospects, and if he were in serious need of accommodation. It would further be strengthened if the offspring inheriting the property is already a property owner, and if the 'destitute' son could credibly argue that the parent had failed to make adequate provision for him in life.

Complete nonsense. It is not required of the parents that they only bequeath property to children who haven't been successful in life which is what you are suggesting.

What you are proposing is that a ne'er do well child has a greater claim on the parent's estate than siblings who have done well in life. As long as the parents have provided for the children in equal measure during their upbringing then how each of them does later in life has no bearing on their entitlement when it comes to the distribution of the parents estate.

Here is S.117 of the Succession Act 1965....

117.—(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.