Contest a will/deed of variation?

[jacob1980]

I'll try and keep this as brief as possible. My dad died in 1998 and left all his estate to my mum. In 1998/1999 Mum made a will leaving all the estate split 50/50 between my brother (now 12) and myself (now 28). In 2000 my Mum met a new man, in late 2000 she sold the family home and brought a new house (cash). Mum, new partner, my brother and I lived in the 'family home'. in May 2002 she married the new man and he obviously became my step dad (he has no kids). In Sept 2002 my Mum became terminally ill wil liver cancer. She sat me down and said that she was going to make a new will along with my step dad (mutual/mirror wills) and she would leave everything to him and then upon his death he would leave everything to my brother and i split 50/50. She died in May 2003. I was an executor to that will and also to my step dads will which was now to leave everything to my brother and i upon his death. In Oct 2006 my step dad changed his will leaving the house (worth 265k) to my brother. He also now made his brother and sister the executors of the will. This has come as a big shock to everyone involved and everybody involved feels this is very wrong and he has gone against mum's wishes. We can't just vary the will as my brother is only 12 and as suc can't make that decsion. Would applying to a court for a deed of variation be applicable in this case? i understand the court can act on my brothers behalf, all the evidence is in my favour. I don't really want to contest the will as that will reduce the estate considerably after costs.

[Barmaid]

I will try and keep my answer as brief!!

For a start, you need to differentiate between mutual wills and mirror image wills. A mirror image will is just that. There is no legal force in the fact that wills of partners/siblings etc mirror each other. Mutual wills ARE uncommon as are contracts to make wills and I would be very surprised if the documents you have would go so far.

If they are only mirror image wills, then the estate is your step father's to dispose of as he pleases.

I take it he has now died then?

You could apply to the court for a variation of the will under the Variation of Trusts Act 1958. Your brother will need to be separately represented. However, you will need to show that it is in your brother's interests for your mother's wishes to be restored. Unfortunately, the court may well take the view that it is NOT in his interests to give away half of his inheritance.

If you are still within the time limit for an Inheritance (Provision for Family and Dependants) you could consider a claim for reasonable financial provision from your step father's estate. The fact that you were promised your mother's half of the estate will be something the court will take into account. Take some advice.

[jacob1980]

Thanks to confirm my step dad died in sept 08, I strongly suspect that the wills were mirror wills. My mother has been extremely badly advised as far as i can see.

I have at least 8 people that are aware of my Mum's wishes regarding her will and that she really wanted it to be 50/50 after my step dads death. I don't think she ever thought that he would do it in this way, her main concern was re marrie and giving away to someone else.

My step dad told myself and 2 other people (my auntie and uncle) that the house was to be split 50/50 and he told us only 3 months and 6 weeks before his death (he had changed it in 06). He was meant to be looking after my brother again what my mum wished but in Sept 07 he was taken off him to live at my aunti and uncles because he couldn't look after him.

I have taken legal advise and my solicitor is doing relevant enquires at the moment. People are saying to me wait until my brother is 18 and he will give you half but this isnt a certainty and certainly not the way it was meant to be.

As stated i'm seeking legal advice but comments on here are always helpful....

[Barmaid]

Well it will also be worth looking at a claim against her advisor in professional negligence. But limitation on that will expire in May so you need to move.......

Glad you are getting advice.