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Can this Will be contested?
My father has recently passed away. This is a long complicated story but basically 50 years ago he started up a business from scratch and built the family home on the premises. This is in Scotland btw. As the business expanded, he allowed a worker and his family to move into the house, rent free as far as I am aware, and had a new family home built nearby.
Somewhere along the line, this worker at the business bought some shares in it but my father was always the largest shareholder and owner. The worker's son then began to work for the company.
My father has just passed away. The worker in question (now retired) and his son have inherited ALL of the business and the house.
My mother has been left with no money. He left no money to his only child (me) or grandchildren. Basically, there was no money to leave which I cannot understand. It was and is a successful business. He should have had savings as he didn't live a lavish lifestyle or spend out apart from paying bills and basic living expenses. One would have thought he would have been getting an income/drawings from the business even after he retired. There appears to be no life insurance cover either which is strange as he was an owner of 3 properties and a business and not a stupid man.
Much of his personal paperwork was stored between the business, lawyer and accountant's office all of whom seem to be in cahoots with each other and the go-between is the business secretary whom my mother foolishly trusts. My mother has been kept in the dark regarding finances all their married life.
I cannot undertand why he has left everything to this worker and his son, had no personal life cover for himself and left his wife, child and grandchildren with nothing.
Do we have grounds for contesting the Will?
Any info/advice much appreciated.
Somewhere along the line, this worker at the business bought some shares in it but my father was always the largest shareholder and owner. The worker's son then began to work for the company.
My father has just passed away. The worker in question (now retired) and his son have inherited ALL of the business and the house.
My mother has been left with no money. He left no money to his only child (me) or grandchildren. Basically, there was no money to leave which I cannot understand. It was and is a successful business. He should have had savings as he didn't live a lavish lifestyle or spend out apart from paying bills and basic living expenses. One would have thought he would have been getting an income/drawings from the business even after he retired. There appears to be no life insurance cover either which is strange as he was an owner of 3 properties and a business and not a stupid man.
Much of his personal paperwork was stored between the business, lawyer and accountant's office all of whom seem to be in cahoots with each other and the go-between is the business secretary whom my mother foolishly trusts. My mother has been kept in the dark regarding finances all their married life.
I cannot undertand why he has left everything to this worker and his son, had no personal life cover for himself and left his wife, child and grandchildren with nothing.
Do we have grounds for contesting the Will?
Any info/advice much appreciated.
Answers
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In Scotland it is actually quite hard to disinherit your family. In terms of the moveable property (ie cash, shares in the business etc), the spouse is entitled to one third. Children are also entitled to one third (so if you are the only child, you take the whole one third). The heritable property (ie land and buildings) can be left to anyone.
From what you have said, seek the advice of an appropriately qualified lawyer and pronto.
From what you have said, seek the advice of an appropriately qualified lawyer and pronto.
Hi factor30. As I said, it's long and complicated. Their own family home was in joint names and paid off years ago. It now belongs to mum. I married about 20 years ago and was in the process of buying my present family home when he stepped in and took control, bought it but put the deeds in my mother's name.
Now this may sound ideal to many but in effect it's not as I/we as a family do not have any control over our home even although we have spent tens of thousands of pounds improving the place over the years. Mum has now inherited 2 properties, her own and ours......but has no cash funds. She is in a panic as to how she will even pay for his funeral.
Hi Barmaid, yes I am now aware that it's hard to disinherit family in Scotland but not sure how this stands as far as a business goes. There is something not right about this whole situation and tbh, after the unexpected costs paid out on the lead up to dad's death and afterwards, I/we are not in a financial position to pay out for a lawyer.
Not sure where to turn.
Now this may sound ideal to many but in effect it's not as I/we as a family do not have any control over our home even although we have spent tens of thousands of pounds improving the place over the years. Mum has now inherited 2 properties, her own and ours......but has no cash funds. She is in a panic as to how she will even pay for his funeral.
Hi Barmaid, yes I am now aware that it's hard to disinherit family in Scotland but not sure how this stands as far as a business goes. There is something not right about this whole situation and tbh, after the unexpected costs paid out on the lead up to dad's death and afterwards, I/we are not in a financial position to pay out for a lawyer.
Not sure where to turn.
As Barmaid says, you need to see a solicitor and get this done properly. Barmaid is brilliant at these things and can advise but the issue is probably too complex to resolve on here. I didn't follow the bit about your house where your dad stepped in and put Mum's name on the deeds.
I'm not sure whether the children's third entitlement applies to children regardless of circumstances or only dependent children- Barmaid will know that
I'm not sure whether the children's third entitlement applies to children regardless of circumstances or only dependent children- Barmaid will know that
There are 'no win, no fee' solicitors on google. They assess the case & if they feel confident, will take it on.
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Sorry factor30, I thought I had made things clear. My current family home with spouse/kids - we found it about 20 years ago, fell in love with it and wanted to buy it. As it happened, Dad just happened to be a long lost friend of the vendor at that time and he took over the whole house sale. My spouse had 25% of the original house price funds to put into the sale, but dad would not allow this to happen. The deal was taken out of our hands........he purchased the property and put mum's name on the title deeds.
Barmaid, if you could offer any more info/advice, I'd be most grateful.
Barmaid, if you could offer any more info/advice, I'd be most grateful.
There are three different issues here.
1) The two properties. Your own home was put into Mum's name. This falls outside the Will. Talk to your mother about having your home transferred to you. In respect of your mother's house, this sounds like she inherited it through survivorship and again, this falls outside the Will.
2) The Legal rights you and your mother have relate to your father's "moveable" property. This WILL include the business - whether it be a partnership or a company (and given that you talk about shares, I suspect it is a company). There is potentially a difference between partnerships and companies and this is where the complications arise. If the business IS a company, you are entitled to one third of your father's shares (assuming you are the only child) and your mother is entitled to one third of your father's shares. Write to the executor saying that you wish to claim your legal rights in the moveable property and get your mother to do the same.
3) There are a number of ways of contesting a Will - that it wasn't executed properly or that the deceased lacked capacity etc. NOthing you have said leads me to believe you have a case for contesting it but it might be worth paying a solicitor for an hour's advice.
you say you can't afford a solicitor, unfortunately, you are not going to get the sort of advice you need on the internet (I'm not qualified in Scottish law in any event). YOu need to consider whether you can afford NOT to seek legal advice.
1) The two properties. Your own home was put into Mum's name. This falls outside the Will. Talk to your mother about having your home transferred to you. In respect of your mother's house, this sounds like she inherited it through survivorship and again, this falls outside the Will.
2) The Legal rights you and your mother have relate to your father's "moveable" property. This WILL include the business - whether it be a partnership or a company (and given that you talk about shares, I suspect it is a company). There is potentially a difference between partnerships and companies and this is where the complications arise. If the business IS a company, you are entitled to one third of your father's shares (assuming you are the only child) and your mother is entitled to one third of your father's shares. Write to the executor saying that you wish to claim your legal rights in the moveable property and get your mother to do the same.
3) There are a number of ways of contesting a Will - that it wasn't executed properly or that the deceased lacked capacity etc. NOthing you have said leads me to believe you have a case for contesting it but it might be worth paying a solicitor for an hour's advice.
you say you can't afford a solicitor, unfortunately, you are not going to get the sort of advice you need on the internet (I'm not qualified in Scottish law in any event). YOu need to consider whether you can afford NOT to seek legal advice.
Thanks for your response Barmaid :-)
In regards to the first issue, mum has no problems with transferring the deeds of my house into my name, but from what I can gather, all sorts of issues with Capital Gains Tax etc would come into play if we were to go down that road. She is in her 80's now so it's probably best left as things are and inherited at some point in the future.
In regards to the second issue, I/we will certainly try this. The executor is also the lawyer. He is meeting again with mum next week and I wish to attend as well, but the go-between is also attending and she is the mouthpiece in relaying all of our personal affairs back to the business. I don't want to be asking all the questions that I want to in front of her for obvious reasons.
In regards to the third issue, I assumed that contesting a Will is the same thing as stating one or a party is not happy about the unfairness in the way that an estate is divided or handled. Bearing in mind that the largest portion of the estate has been awarded to the young son of a worker. I would have assumed that family should come first before employees etc.
Last thing.........and sorry for being a pest as you have been so helpful, but is it legal to be a business and property owner and not have life insurance cover? I would have thought this would be mandatory.
............and just say there was policies conveniently (hidden), I mean filed away at the business premises, mum would never find out nor benefit from them. Scary to think that this may go on.
Thanks for the link tamborine.
In regards to the first issue, mum has no problems with transferring the deeds of my house into my name, but from what I can gather, all sorts of issues with Capital Gains Tax etc would come into play if we were to go down that road. She is in her 80's now so it's probably best left as things are and inherited at some point in the future.
In regards to the second issue, I/we will certainly try this. The executor is also the lawyer. He is meeting again with mum next week and I wish to attend as well, but the go-between is also attending and she is the mouthpiece in relaying all of our personal affairs back to the business. I don't want to be asking all the questions that I want to in front of her for obvious reasons.
In regards to the third issue, I assumed that contesting a Will is the same thing as stating one or a party is not happy about the unfairness in the way that an estate is divided or handled. Bearing in mind that the largest portion of the estate has been awarded to the young son of a worker. I would have assumed that family should come first before employees etc.
Last thing.........and sorry for being a pest as you have been so helpful, but is it legal to be a business and property owner and not have life insurance cover? I would have thought this would be mandatory.
............and just say there was policies conveniently (hidden), I mean filed away at the business premises, mum would never find out nor benefit from them. Scary to think that this may go on.
Thanks for the link tamborine.
You may be able to get CGT exemption since it was a property where a dependent relative lived - this needs proper advice. Although if her estate is below the IHT limit and you are sure it is all coming to you it is probably best left.
Contesting a Will does not amount to saying "it is unfair" - it is a way of overturning the Will - ie saying "this will is invalid because dad did not have testamentary capacity". The fact that the will is unfair is not enough.
Ask to see the executor alone without the mouthpiece being present.
It is not illegal to run a business and not have life cover.
If there are policies hidden away a) they may be in trust for your mother, in which case only she can claim them and if they are not in trust and form part of the estate b) they will HAVE to be declared on the application for confirmation. The company who manages such policy will not release assets that do not appear on the application for confirmation. (THis is an area where Scots law is significantly better than english law).
Contesting a Will does not amount to saying "it is unfair" - it is a way of overturning the Will - ie saying "this will is invalid because dad did not have testamentary capacity". The fact that the will is unfair is not enough.
Ask to see the executor alone without the mouthpiece being present.
It is not illegal to run a business and not have life cover.
If there are policies hidden away a) they may be in trust for your mother, in which case only she can claim them and if they are not in trust and form part of the estate b) they will HAVE to be declared on the application for confirmation. The company who manages such policy will not release assets that do not appear on the application for confirmation. (THis is an area where Scots law is significantly better than english law).
Thanks again Barmaid, you have been most helpful.
I don't think a CGT exemption would be relevant however as she has never lived here in this property.
I will however try to speak alone with the executor asap.
Thanks for clarifying the insurance query re the business, but I would still have thought that property owners should have, by law, life insurance or something of that ilk in place.
It is mum I am most concerned about. She has gone from being the wife of a successful business owner and assuming she was secure to now struggling financially and trying to juggle a meagre pension to try and make ends meet as well as worrying how she will even pay funeral costs, whilst the business employees have everything. It doesn't seem right.
I as a child lost out on the joys of having parents there for me as all their time was taken up in building up the business.
I don't think a CGT exemption would be relevant however as she has never lived here in this property.
I will however try to speak alone with the executor asap.
Thanks for clarifying the insurance query re the business, but I would still have thought that property owners should have, by law, life insurance or something of that ilk in place.
It is mum I am most concerned about. She has gone from being the wife of a successful business owner and assuming she was secure to now struggling financially and trying to juggle a meagre pension to try and make ends meet as well as worrying how she will even pay funeral costs, whilst the business employees have everything. It doesn't seem right.
I as a child lost out on the joys of having parents there for me as all their time was taken up in building up the business.
You could do a company search of your father's business to see when/how the shares were disbursed & the company accounts are useful:
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Directors often have a Company Pension Scheme that your mother may have entitlement to. Check your father's bank accounts for the salary he received from the company, that your mother might be entitled to.
If the Will has not gone to probate you should enter a 'caveat' with the Probate office in your father's area. The costs for contesting a Will are high, £20k+ (depending on assets) the loser pays. Surely your father made more than one Will & you can find an earlier one in your family's favour ? Please let us know how you get on. Good luck.
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Directors often have a Company Pension Scheme that your mother may have entitlement to. Check your father's bank accounts for the salary he received from the company, that your mother might be entitled to.
If the Will has not gone to probate you should enter a 'caveat' with the Probate office in your father's area. The costs for contesting a Will are high, £20k+ (depending on assets) the loser pays. Surely your father made more than one Will & you can find an earlier one in your family's favour ? Please let us know how you get on. Good luck.
Thank you so much tambourine, that was really helpful info.
Am unable to find the business on that link you sent though. Everything listed there appears to be Limited companies. His business went under his 'name & Co' a bit like Legs and Co, lol. Could there be a separate seach site for 'companies' not Ltd?
As the only child, I am not listed on dad's Will at all. Basically, this employee and his son have been left all of the business (at a guess I'd say over £2,000,000 worth, probably more). Everything I'm reading on Scottish Law favours the spouse and children in every case whatever the Will says.
As far as legal costs go, I should be entitled to Legal Aid.
Do you know how easy it is to enter a caveat? That is, will I need information etc, and if so, what?
Will certainly keep you posted.
Am unable to find the business on that link you sent though. Everything listed there appears to be Limited companies. His business went under his 'name & Co' a bit like Legs and Co, lol. Could there be a separate seach site for 'companies' not Ltd?
As the only child, I am not listed on dad's Will at all. Basically, this employee and his son have been left all of the business (at a guess I'd say over £2,000,000 worth, probably more). Everything I'm reading on Scottish Law favours the spouse and children in every case whatever the Will says.
As far as legal costs go, I should be entitled to Legal Aid.
Do you know how easy it is to enter a caveat? That is, will I need information etc, and if so, what?
Will certainly keep you posted.
A legal rep should enter the caveat before probate, you will need third party involvement. Once the caveat is made known, a mediation will be initiated for a settlement/agreement to way forward. If the mediation fails, then you’re all in Court for a judicial decision. N.b. If your mother benefited from the Will, her share would reduce the IHT and her share could be the IHT slice ?
Caveat
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Caveat
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There's no such thing as a "company that is not limited". By definition, all companies are either private limited companies (Ltd) or public limited companies (PLC). If your father's business was just called "Smith & Co" then it isn't a company. It's a partnership and there are absolutely no public records of a partnership. It is perfectly possible that the partnership agreement was to the effect of the business passing to the survivor entirely on the death of one partner. It would be a bizarre thing to do where partner one has dependents but it's certainly feasible. If there's no formal partnership agreement though the estate would be entitled to a percentage of the business worth though. One for the lawyers and accountants to work out though I'm afraid. Only they know what the partnership agreement was.
And to be honest I can't think of any reason why a business or property owned should have to have compulsory life insurance either. I would think very few do.
And to be honest I can't think of any reason why a business or property owned should have to have compulsory life insurance either. I would think very few do.
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