Crosswords1 min ago
contesting a new will
4 Answers
My father and mother left a joint will, leaving the house to myself and my brother but my father has just died and my mother is on about making a new will, leaving the house to my brother, as he has no home. Can she cut me out of her new will and leave me with nothing, and leave everything to my brother. Can i contest the new will, under the grounds it is unfair to one sibling and not the other.
Answers
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It is not straightforward. Joint wills are never easy.
How did your parents own the property? Joint tenancy or as tenants in common?
If it was joint tenancy your mother automatically owns the whole house and can do with it whatever she likes.
If it was tenants in common your father's will will apply to his share of the property; and your mother can do what she likes with her half.
If it was tenants in common and your father left his share to your mother, your mother now owns the whole and can do with it whatever she likes.
Assuming your mother has the right to will the whole property, she can leave it to one sibling, the cats home or the next door neighbour if that is what she wants to do. Fairness doesn't come in to it.
The exception is if you are financially dependent on your mother at the time of her death, then you may be able to make a claim.
How did your parents own the property? Joint tenancy or as tenants in common?
If it was joint tenancy your mother automatically owns the whole house and can do with it whatever she likes.
If it was tenants in common your father's will will apply to his share of the property; and your mother can do what she likes with her half.
If it was tenants in common and your father left his share to your mother, your mother now owns the whole and can do with it whatever she likes.
Assuming your mother has the right to will the whole property, she can leave it to one sibling, the cats home or the next door neighbour if that is what she wants to do. Fairness doesn't come in to it.
The exception is if you are financially dependent on your mother at the time of her death, then you may be able to make a claim.
Hc4361 has beaten me to it with his/her post regarding whether your parents were 'tenants in common' or 'joint tenants'. The relevant information should be in the title register to the house, which you can download (for £4) from here:
https://www.landregis...ortal/Property_Search
Chris
https://www.landregis...ortal/Property_Search
Chris
I'm going to be slightly pedantic now.
Firstly do I gather that the terms of your parents' wills were "all to the surviving spouse but if they have not survived between you and your brother"? if anything different to this it makes a difference.
You may be able to challenge your mother's decision to make a new Will. However, this depends on whether your parents' "joint" (at law there is no such thing) wills were "mutual" wills or "mirror image" wills. Mutual wills are relatively rare but could mean you could challenge your mother's right to make changes. However, it has to be clear that the wills were mutual. This is actually quite a complicated issue and you should seek legal advice. A similar issue would arise if there had been promises between your mother and father - again a complicated issue and relatively rare. Assuming non of these factors are present there is not a lot you can do (assuming your mother has testamentary capacity) and bednobs is quite correct in saying that anyone can leave whatever they like. Fairness does not come into it.
As for making a claim - this could only be done after your mother's death. It is NOT necessary to show you are dependant. As a son you are eligible to make a claim. However, adult children of working age who are financially independent are very rarely (if ever) successful. There may however be other factors which would increase your chance of claiming.
And then there is the stuff about joint tenancy/tic which has already been covered.
Firstly do I gather that the terms of your parents' wills were "all to the surviving spouse but if they have not survived between you and your brother"? if anything different to this it makes a difference.
You may be able to challenge your mother's decision to make a new Will. However, this depends on whether your parents' "joint" (at law there is no such thing) wills were "mutual" wills or "mirror image" wills. Mutual wills are relatively rare but could mean you could challenge your mother's right to make changes. However, it has to be clear that the wills were mutual. This is actually quite a complicated issue and you should seek legal advice. A similar issue would arise if there had been promises between your mother and father - again a complicated issue and relatively rare. Assuming non of these factors are present there is not a lot you can do (assuming your mother has testamentary capacity) and bednobs is quite correct in saying that anyone can leave whatever they like. Fairness does not come into it.
As for making a claim - this could only be done after your mother's death. It is NOT necessary to show you are dependant. As a son you are eligible to make a claim. However, adult children of working age who are financially independent are very rarely (if ever) successful. There may however be other factors which would increase your chance of claiming.
And then there is the stuff about joint tenancy/tic which has already been covered.
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