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General => The Common Room => Topic started by: thistlebay on Tuesday 29 March 16 17:47 BST (UK)
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Hi
I wonder if anyone out there has any knowledge of the legal jargon in a will. I obtained a will of a person who made same 11 years prior to dying in 1971.
He had been married 3 times, had 5 children to his 1st wife who died young, married the 2nd and had one son to her and she then died and then 4 years later married his 3rd wife.
His last son became ill in his teens and although he worked for approx. 25 years he had to give up because of ill health. His last son was approx 18 when his father died but still lived with them.
This man and his wife and son moved to a bigger house approx 7 years before he died so the property stated on the will is different to that of the property he actually died in. All his other children were much older and married with families of their own.
This is part of the will:
I appoint my wife ...... .... to be the Executrix and Trustee of this my will and she also to be the guardian of my son .... ..... during his minorit. I direct her to pay all my just debts funeral and testamentary expenses. I appoint my Trustee to be a Trustee for the purposes of the Settled Land Acts. I Give and Devise to my Trustee my house and premises; ........ in the City of ...... for my son .... ..... and I declare that the Devise shall not vest absolutely in my said son until he attains the age of twenty one years. If he shall pre-decease me or die under the age of twenty one years this Devise shall fall into and form part of my Residuary Estate. I give my Trustee full power of sale and any money liable to investment which might accrue whether by way of income arising out of the said premises or capital representing proceeds of sale thereof and income thereon may be invested in or upon or applied in the purchase of any investment security or property of any kind, (whether producing income or not) approved by my Trustee, and may, pending investment be placed on Deposit or current acct at any Bank or with any company incorporated with limited liability. I authorize my Trustee to apply any part of the presumptive or vested share of my said son in the said Trust property under this my will for his advancement in the world.
At this point he goes on to leave his other children their legacies of money.
Then: As to all the rest residue and remainder of my property of every kind and description and wheresoever situated of or to which I may die seised or possessed or entitled to or over which I may have any power of appointment I give Devise and bequeath same to my wife .... ..... absolutely.
Now, my question is this: The wife dies about 20 years later and her stepson is still living with her, the son referred to in the will. They are living in the property his father died in but not the property mentioned in the will. The stepmother has made a will bequeathing the house and everything in it to her 3 nieces but that her stepson can live in the property until his death.
The testators son is still alive now and wishes to know legally where he stands in regard to the will of his father as he was of the understanding that after his stepmother died he would inherit the property, is this correct? Does anyone have any legal knowledge on this at all?
Just to add to this, the wife of the deceased had to go to a solicitors to swear or something of that nature, told to me by the stepson as he went with her, that there was no will left by her husband and yet I managed to find this one! She told all his children that their father had not made a will and they were told by the stepmother they could have just £? each, a very very small amount.
We did go to a solicitor for advice after finding this will but he claimed this only surviving son (the stepson of his wife who was to be looked after her in the will) has no claim or rights to the property he still lives in to this day.
Any help appreciated.
Many thanks
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It sounds like the will was never taken to probate and the estate of the father dealt with as intestate - so the contents of the will are not relevant at this stage. He would need to get the original administration of the estate overturned and this will admitted to probate - whether (or how) that can now be actioned after so much time, I have no idea.
I would be getting a second opinion from a solicitor who specialises in probate and trust law.
Probate disputes can be expensive and very divisive in families - he needs to consider whether that is something he wants to do.
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What date did the Wife who should have been the executor/trustee die on, please?
Have you obtained a copy of the grant of probate following the mans death?
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Thistlebay, Where from and how did you get the copy of the will from, please?
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Antony's advice is sound, this sounds like a very complicated situation which can only be sorted out by a solicitor who specialises in probates and who knows what he is talking about. Unless we have anyone here who is that sort of lawyer, any ideas will only be opinions and probably not a lot of help.
It does sound as if the wife either didn't know, or said she didn't know of the will and it was dealt with as if there was none. When an estate is dealt with, sometimes an insurance is taken out in case future heirs come forward. It might be worth seeing if that is the case.
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I think that it would be worthwhile to get a Second Opinion from another specialist Inheritance solicitor. If necessary they can ask for a barrister to give an opinion.
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I think a search of the probate registry for his will or intestacy, and more so for that of his wife, is the first step,
Expert advice is a sound idea, but who will pay for it, and is there any hope of recovering the cost, the wife is dead, the executor of her will may be untraceable.
Mike
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Just a thought as well, it might also be worth finding out what happened when they brought the new property. It could be that it was brought in both their names and both names were on the deeds. That might have a bearing on the will as the house would not be his to give.
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Just a thought as well, it might also be worth finding out what happened when they brought the new property. It could be that it was brought in both their names and both names were on the deeds. That might have a bearing on the will as the house would not be his to give.
That was my thought as well, it was usual then to buy a property in joint names, the will you heve found may have been invalid, are you certain it was made after he married his third wife?
The will you have found refers to a specific named property, as it was sold before he died it forms no part of hie estate, and cannot be applied to the new house.
The only people who have lost out are the five sons of his first marriage, but there may not have been money in the estate to pay their bequests.
If the last wife left a valid will which went to probate then the executor of that will is responsible for the ultimate fate of the house
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Another thought, if the new house is on the land registry site you could purchase the "title documents", not cheap but it will tell you who is registered as the owner, although is is likely that as it has passed by inheritance there may not be much on there, other than who bought it all those years ago.
It is also possible, as it has not been sold, that no details are available.
Mike
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I hope everyone understands but I can't reply to all these messages as I am working at present but will answer all these queries and questions tomorrow and go into more depth once more.
Thank you to all those who have replied. Hopefully I can fill in the gaps that are missing from the original post to make things a little clearer.
Til tomorrow.
Thanks
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Thistlebay,
We could do with a timeline of the dates of the marriages, the date of the will that you have seen, and the dates of death, please.
A new marriage will usually invalidate a will dated before the marriage.
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From the piece posted it does look as if it is the third wife who was named, so presumably it was made after his marriage to her.
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To try and answer the thread title,
The legal jargon, settlement of land act, suggests the will was drawn up by someone with legal knowledge but basically enables the rest of the will to be carried out independently of any delays caused by problems with the property, but I think can only refer to the specific property mentioned, which he no longer owns.
I can see no way the youngest son can ever inherit the new property under any circumstances, he has the right to live there for his life under the terms of his stepmothers will.
If it were me I would let sleeping dogs lie.
Mike
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Thanks to all who have replied on this topic.
I will try to answer as many questions as possible.
The deceased married in 1958 to his 3rd wife, she is also named as executor as well as Trustee of his will so I am sure she would have known about the will when it was drawn up in 1960. The property they lived in at time of marriage was the property the deceased bought on his own so I presume was his name only on the deeds at the time of his marriage to his 3rd wife. I'm not sure but will try to find out who was on the deeds of the property they lived in when he died, which I am now told they only bought in Jan 1970, one year prior to his death. He died in 1971. I am not sure he would have put into joint names though, he was a canny fella I believe :-\
I don't know whether this is relevant but his 1st marriage was in 1919, wife died in 1948, he married 2nd wife in 1950 and she died in 1956, this is the one whose son is still alive and living in the property since 1970. Then he married 3rd wife and she died in 1999.
The will owner died in 1971. He bought and sold several properties throughout his life and the last one as I said he bought in 1970. I think this is possibly the reason his 3rd wife had to go to the solicitors and swear an oath or something of that nature to put the property in her name, I don't know how she did it all but I believe she was very good friends with the solicitor in the death county of her current address at that time but also saw a solicitor in another county in regard to making her own will then leaving the property to her 3 nieces who also live in or around that county.
The son of deceased recalled where this solicitor was to which he visited with his stepmother after his father died. So I made a few phone calls (law society) and was given info which led me to the solicitor who had the will. I made an apt to see this solicitor with the son of the deceased and it was him who provided me with the will and told me that as the property address was different on death to that of the will then the will became invalid on that point. I have made notes that I intended to find out who the deeds belonged to at the time of death of the will owner but I can't find anything more on that matter in my notes, maybe I didn't find them.
The daughter of the deceased from his first marriage told her stepbrother many years back before her death that she remembered a different solicitors in another street of the city, but not the name of that solicitor but seems to recall her father made a will mid to late 60's which would I assume cancel out the one I have copy of made in 1960 and the one I can't find if it was made then.
So on the death of the 3rd wife, she has made out her will but with a different solicitor in different county. After her death her 3 nieces and deceased brother and sister, they collected the stepson of said 3rd wife from his home and drove him to the solicitors in the other county, whereby he was seated and just had to listen to the will being read out of his stepmother. He was asked to sign a document and was left a small amount of money but didn't read the document. That was the end of it! He was then driven back home. The family then opened the garage door and took the deceased's car from the garage and took it with them.
The son gave me details of the solicitors he was taken to and so I rang them, they told me they had the deeds to the property held there, I asked for a copy of the will which was then sent to me. I have just read her will again and it states not her nieces but her godchildren, but they were one and same, and it was her 2 nephews she appointed as her executors.
She states I give devise and bequeath my house at .... and the contents thereof to my stepson ... ... for his life and thereafter to be sold and the proceeds to be divided equally between my godchildren (3 names) but if any godchild dies etc etc (the norm).
I direct that none of the contents of my house be removed after my death.
So if she (the 3rd wife) stated that her deceased husband left no will and she went to the solicitors to have the house put into her name, then this was obviously fraud surely? Her nephew apparently was a good friend of the solicitor where she was sworn on oath that she knew of no valid will.
Ok that's all I can think of at the moment, I'm still wracking my brains to try to find out about the deeds now but like one of you says, it may be too late now.
Thank you all
Catherine
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My thoughts are that you need to search the probate registry for a grant of probate or letters of administration for his death in 1971, search a couple of years after as well.
There must be one unless before his death everything was put in joint names, a lot of people did this, as it makes life simple.
Mike
Added, don't read too much into the use of different solicitors, it is common in order to avoid a conflict of interest as a solicitor can only act for one party in an agreemen, even if there are no contentious issues
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It does sound to me as if the will you've found may be invalid for several reasons and perhaps there was a later one leaving everything to her, maybe this was made after the son reached majority. Even if she was good friends with a solicitor I doubt whether he would have risked his career colluding with her.
The fact that she has made a will allowing her stepson to live in the house until his death doesn't sound to me as if she is trying to do him out of anything and she has provided for him. Surely if that was the case, she would have just left the house to her nieces to do with as they wanted and he would have to move out.
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Thanks for replies again.
I will try and find the probate and / or deeds of property. The son didn't reach majority til after his father's death, but in his will it does state that 'I appoint my Trustee to be a Trustee for the purposes of the Settled Land Acts'. I don't know what this means either. But it would seem that he passed to his wife the house etc to be held by her but that when his son reached majority then the property would then become his. 'I declare that the devise shall not vest absolutely in my said son until he attains the age of 21 years.' Does this not mean that his son owns the property when he becomes of age? I know there is a difference between devise and bequeath but in this instance, I'm really not sure what it all means.
In regards to her nieces, I think she carried out her late husband's wishes in that allowing her stepson to stay in the house for his life was justified that way. Bar one, all his other children swore there was a valid will made and the other children never spoke to the stepmother again bar the one stepson from the 2nd marriage who lived with them at the property. At the time they felt aggrieved by the stepmother saying that their father would definitely made a will but she insisted there wasn't one. This very fact, and the fact I found a 1960 will he wrote tells me something was not right. I just cannot believe she didn't know that she was executor and trustee of his will.
Regards
Catherine
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Once again groom is giving sensible advice :) :)
You cannot challenge the stepmothers will as more than 12 years has elapsed and the executor acted correctly
There is no time limit if you think there was fraud in the administration of the 1971 estate, but that is going to be impossible to prove, and the legal costs will be huge.
I agree with Groom, the stepmother seems to have acted reasonably, she could have just taken the lot and spent it, but instead she made provision for her stepson.
Let sleeping dogs lie remains my advice.
Mike
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Our posts crossed, you have been told by a solicitor that the settlement only applied to the specified house, and not to the new house.
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Looking on line, I think the "Settled Lands Act" may mean exactly what she has done ie allowed the son to live there for life, and then the property to be sold after his death.
It really depends whether or not the stepson wants to challenge her will and gamble on the chance he may not succeed. Have you tried somewhere like the Citizens' Advice?
As Mike said, I'd be tempted to let sleeping dogs lie, especially as he is allowed to stay in the house, presumably rent free? The only disadvantage is that he can never move.
I suppose the lesson to be learnt from this is to remember to make a new will if you move, or to word your will so that it doesn't name an exact property, but says something along the lines of "the property I own at my death."
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Maybe you're all correct, maybe I should leave well alone ???
Thanks to everyone who has given their advice and help on this topic.
Regards
Catherine
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Hi
No I havent' tried the Citizens advice. Yes he lives in the house rent free but the house was paid for in full I believe when purchased in 1970. He does pay all the utilities obviously but the upkeep/maintenance of the property has never been done by the legatees of her will, even though on paper they own the property. The son hasn't been a well man for a great number of years so cannot work so in turn cannot afford to maintain the property either.
I agree, I am surprised that the father had this in his will as apparently he was so meticulous, but maybe he didn't realise the problems it would cause after his death. Or maybe he did! ;)