Friend Making A Will And Leaving Out Son

[Iluvspikey]

My friend has been diagnosed a terminally ill, and in the year she's got left she wants to put her affairs in order. She wants to leave everything to her daughter, (house and money plus a property abroad) her son is a drug addict who has lied, stolen and cheated her and at one point tried to kill both parents by setting fire to their house. He got off on a technicality, but he said if he doesn't get his 'fair share' he'll contest the will. how can she go about things so her wishes are complied with and he gets nothing?

[murraymints]

In Scotland he would have a claim on moveable estate...ie cash in accounts but not property....a friend took legal advice same scenario....

[sherrardk]

My mother managed to do it to me so I presume you just write a will leaving your stuff to who you want to get it.

[Gavmacp]

Take legal advice!

[Peter Pedant]

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Hi Spikey

Your fren' goes to a lawyer and he draws up a will that she signs.
If the son is a dependent then the lawyer will give advice as to what he has to be left. He may in the will specify why the son has been disinherited.
IF she has a foreign property she definitely has enough money to pay a lawyer.

IF she has a foreign property - then she has a variety of choices such as draw up a will for that property under that country's law. Difficulty is - presumably she is in England. The foreign will has to comply with foreign law and there may be much less lee-way to leave her property to whomever. Belgian law for example I think the children have to get 2/3 whatever. This obviously means that the son has a 'way in'.

It is absolutely vital she doesnt do this herself with a do-your-own-will set from Boots all of £1.99p

and not for the first time, here is my fave wills case

http://www.telegraph.co.uk/news/9523298/Bernard-Matthewss-children-in-will-row-with-mistress.html

all the usual suspects will now chip in their familiar two penny worth

[Buenchico]

In England and Wales a testator can bequeath their estate to whoever they like and there is absolutely no obligation to give anything to relatives. (My own will doesn't leave a penny to any of my family).

However the Inheritance (Provision for Family and Dependants) Act 1975 gives certain people (who would certainly include your friend's son) the right to apply for a court order varying the terms of the will. But such orders aren't made just because a person feels disgruntled by being left out of the will. The son would have to show that the will failed to make 'reasonable financial provision' for him.

The law defines 'reasonable financial provision' as "such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance"

When examining those circumstances, a court must have regard to all of the provisions listed here:
http://www.legislation.gov.uk/ukpga/1975/63/section/3

If the son is currently living with his mother (or has very recently done so), and is supported by her, then he may well have a valid claim for 'reasonable financial provision'. However if she has clearly disowned him and he has not recently been financially supported by her, any claim would be far weaker.

It's impossible to write a will which will guarantee that certain close relatives won't benefit from the estate. The Inheritance (Provision for Family and Dependants) Act 1975 was enacted specifically to stop that happening where it would genuinely disadvantage people who had a reasonable right to expect to benefit from the estate. However (despite how the media might portray them) judges aren't fools and they won't vary the terms of wills unless there's a clearly compelling reason for them to do so.

Watch out for a possible reply from Barmaid on this thread. She's a barrister specialising in such cases, and so will know far more than most other people on here about such matters.

Chris

[atalanta]

I suggest she leaves him a very modest sum, on condition he does not contest the will. Say £2,000 or £5,000. Such conditions have been upheld in the past. If he contests the will he walks away with nothing. My father did this to one of his grandchildren who had treated him very shabbily.

[Iluvspikey]

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,

[LankyLanky]

If I remember right, in Scotland your friend's children would have 'legal rights' to at least one third of the estate. So the son would be entitled to a sixth. In England and Wales, all the testator need do is provide reasonable grounds for exempting a child. This could be done at the same time as making the will - reference to his burglary and attempted arson would be useful.

[LankyLanky]

I should have added that the legal rights only apply to 'moveable' assets, that is anything that isn't property (cash, car, jewellery etc)

[tonywiltshire]

Atalanta, you may be thinking of an in terrorem clause (as a Warning), the problem with this is you have to leave something worthwhile or it is not particularly effective, the greater the sum the more effective it should become. There should be no difficulty excluding the son in England and Wales, perhaps with a recital, but the overseas property could be more difficult, I suggest your friend takes the advice given and consults a solicitor with the full information and that she does not attempt to achieve this with a DIY will.

[coccinelle]

I no nothing about Portuegese law but in France you can't disinherit a child. It would be best to look into this while she can. is her husband still alive?

[coccinelle]

http://www.successions-europe.eu/en/portugal/topics/in-the-absence-of-a-will_who-inherits-and-how-much

This might help.

[joko]

cant she just give it all to the daughter now?
sign it all over to her, so there is no will - its all gifts.

the arrange with daughter that she lives in the house and pays rent etc until she dies