Right To Contest A Will

[loopylou8]

My mum is now 86 yrs old. Approx 16 years ago she made a will leaving her house and everything equally to my sister and myself. We have an adopted brother,who is, and always has been a complete waste of space. Because we both got married and our surnames are changed,him and his son are maintaining they have the family name and therefore they can contest the will. This is making my Mum ill with worry. Answers please or advice on who to see. Like to add that this will was done legally with a solicitor

[factor-fiction]

Are you in Scotland?

[factor-fiction]

Was the son adopted before or after she made the will?

[VHG]

The fact your surnames have changed is nothing to do with it, you are still your mothers children and nothing can change that.

[bednobs]

anyone can legally contest a will

[boxtops]

Your mum may be 86 but if she still has all her marbles and can make her own decisions, why doesn't she make a fresh will, with your corrected names in it - to avoid any problem after she's gone?

[factor-fiction]

I don't think his being a waste of space makes any difference.
Is he dependent on your mum? Does he live with her?

[Barmaid]

He can contest the Will. However, whether he has grounds to do so are another matter. Normal contests to wills are lack of testamentary capacity, lack of knowledge and approval or lack of compliance with the formalities. Assuming none of those will be successful, the only other option he has is to make a claim for "reasonable financial provision" under the Inheritance (Provision for Family and Dependents) Act 1975. I can't say how likely that claim is to be successful since that depends on his own circumstances.

[Barmaid]

The names won't make the blindest bit of difference.

[boxtops]

... and as the will was made when loopy's mother was 70, presumably there could be no challenge on grounds of mental capacity either, if she is still capable now?

[Barmaid]

Doesn't matter whether she is capable or not now. What matters is how capable she was when she made the Will. The testamentary capacity test is not all that high.

I think the most likely area of challenge is the Inheritance Act.

[boxtops]

sorry BM, that's what I meant, she was of sound mind when she made the original Will.

[DJHawkes]

certainly if it as fraser and fraser looking for lost heirs he would be a contender in law

[FredPuli43]

Fraser and Fraser are only involved if there is no will at all. Here there is.The suggestion that a daughter named in a will cannot inherit because she has married, or that any child or adopted child can claim because they are male and therefore have the same surname as the testatrix, is quite one of the silliest ideas any lawyer is ever going to hear.

[loopylou8]

Thank you everyone. I live in Wales. Our names are correct (married) on the will. He's not dependant on my mum and was adopted 54 years ago. Up to three years ago my Mum was still driving so fully competent. He 'sponges' off my Mum on a regular basis. Him and his Son are discussing what they will be having upon my Mums death. This is really upsetting my Mum. Do you think another visit to the solicitor is in order?

[factor-fiction]

I don't see any need for another visit to the solicitor unless it would put your mum's mind at rest to write a new will and perhaps ask whether it needs to be made clear that little or nothing is to be left to the son.

[bednobs]

i wonder if it would be a bit more dangerous to make a new will - perhaps the son could then say you coerced her. Also, your mum is not dead - who is to say your brother won't die first?

[lcg]

the only problem i can see is the son challenging the will by saying he is somehow financially dependent on your mother as she keeps giving money to him - he may have a claim under the inheritance act, as barmaid has already stated. she needs to stop giving him anything NOW. he can challenge the will if he so chooses, but remember that it will cost him money that he probably won't have.

[tonywiltshire]

The fact that you and your sister are married and that your brother was adopted are irrelevant, of course your names have changed and an adopted child has the same rights, in this respect, as a birth child. If your mother made a valid will some 16 years ago which did not include your brother as a beneficiary his only claim will probably be under the Financial Provision of deceased’s estate, nothing to do with his or your name, hopefully the will is stored in your solicitor’s strong room.

[joko]

cant she just see a solicitor and get something added that states that she does not want them to receive anything... surely any attempt to contest it will fail then...?

[Barmaid]

I would advise to leave things as they are.

You COULD do another will with an "in terrorem" clause (ie a clause that prevents a challenge). However, these have to be quite carefully worded to be successful. Mum would also need to leave something to the son for it to kick in.