Query regarding Will made out to wife & kids

[Patrick2008]

A friend of mine has asked for my advice regarding a Will and it is as follows. Her Father died 7 years ago and he had made a Will. The Will stated that the estate (house and farm) was to go to his wife and his nine children. The house and farm was not in joint names of the husband ad wife. His Brother was appointed Executor and he has been spending the past few years organising the paying off of debts etc. I am not sure if the Will has gone to probate yet.

Anyway this girls Mother is now trying to decide who gets the farm, who gets a site and who gets the house etc. I think she wants to try to look after everyone. Maybe I am wrong but I would have thought it would not be up to her to make this decision as the will clearly stated "wife and children". I am aware that the wife is protected under the Family home protection act in relation to the house and I am aso aware that a wife is entitled to at least 1/3 of the estate.

My friend does not know how she should approach it. Does anyone know what the legal postion is first?

 

[mf1]

Waaaaaay too complicated for an off the cuff response!

Whole series of big issues.

What did the will actually say?
Has Probate been extracted? If not, why not?
Has wife been advised of her legal right share? Time limits apply.
Do offspring want their share or are they all willing to disclaim in favour of mother?
Does mother have any grasp of the situation? If not, why are the family not getting on top of it?

If mother does start disposing of sites etc.,etc, and if she does see a solicitor , it will become reasonably clear reasonably quickly, what the situation on the ground is.

Friend should talk to uncle and see where it is all at. Also talk to all the family including mother. And cue huge family row.

Or just go straight to a solicitor and make themselves aware of the facts and the legal position without causing the huge family row.

mf

 

[hastalavista]

The OP's question is about the Mother wanting to carve up the assets.

Before having a row based on mis-information a few facts need to be clarified.

The wording of the will is key as there is a clear conflict between what I gather from the OP's post and the 1/3 rule in the Succession Act.

On the face of it the assets are now owned 10 ways, assuming all the kids are adult age.

The usual way the wording is done, (from memory on the exact wording but the steps are correct) when spouses make wills is that each spouse will leave all the assets to the other spouse and to cover off the 'car wreck' risk the wills will include a line to say if the other spouse is already dead then the assets go to the kids.

Step one:

Get in contact with probate office and ask for the current status of the estate. They are v helpful.

If probate has not been granted then it needs to be done as there are possible tax issues.

If probate has not been granted then what assets has the executor being using to pay off debts.

If probate has been granted then depending on the wording in the will there may be tax issues also depending on the asset values and threshold values for IHT.

Once you have established the facts then some legal advice may be required but not just now.

[Mods: this might work better over in Wills section]

 

[Patrick2008]

The Will states that the estate should be divided between wife and children although this is not the exact legal wording used.

My friend who is one of the nine children (who are all over the age of 18) is fairly laid back by the whole lot and she would rather her Mother is looked after first and she is of the view that other members of the family should give heir share to their Mother. However, my friend is afraid that her Mother will only give the entire farm to one of the Children and not keep all her assets while she is alive. Even though I know it is her choice in the end. There will be no falling out with the family in any event but I think my friend just wants to know where she stands legally.

 

[hastalavista]

The other point to note is that if there are any 'farm payments' and other stuff re the farm, then the income stream from that source is regarded as a stand alone item which if not dealt with separately in the will is divided 10 ways in this case via the residual clause.

If this is the case then who signed the annual farm payment request documents since the father died?

In these situations its possible that one of the sons has the same christian name as the father and they just 'played on'.

Due to the pressure on public finances all these situations are being looked at and I am currently fighting, for a client, with D of Ag re their assertion that the signature of the like-named son on the farm payment papers after the father died is fraud and they are looking to get 10 years back..

In terms of good news the family should look at the concept of agricultural relief on farm related inheritances