left out of will

[babyblues131]

my dad wrote a will 2006, he died 2008. my son was born in 2007. Unfortunately, my dad didnt update his will, so a very large sum of money is going to his 4 other grandchildren and also a few properties are to be sold on their behalf and the monies divided equally. my brother and i are both executors of the will, and since the beginning of solicitor meetings, my brother has assured me that 'it goes without saying' that my son would be provided for and get the same as the other grandchildren. However, after 6 months my brother wont do a deed of variation to add my son.. he is very badly in debt and has told me that he needs the money more than my baby son, and that legally he doesnt have to give him any of HIS money!! My wife and I are extremely angry and distraught, not just because of the substantial loss of money which would have been a great start for our son, but the fact that I know my dad would never have left out one of his grandchildren intentionally. My brother is very greedy and has many loans and debts and has cried in desperation. Is there anything I can do? I have asked the solicitor if my son is covered by being a pretermitted heir, but he says no..,my brother has to agree thats it.. im going out of my mind please help...

[Barmaid]

You have posted your question under other user names, of that I am sure.

The word "pretermitted heir" does not appear in any of the text books I use (and I use the same text books at the HC Judges use). I have had a brief look for you, based on the wording you posted under another user name (if I am wrong forgive me) and frankly, your problem requires too much research (in terms of case law) for me to bash it out on a website. it is just one of those cases that requires a bit of time (and with a whole load of clients on my backside, I cannot do anything other than a quick kill). I suggest you seek the advice of an independent solicitor - preferably an ACTAPS or STEP and suggest they seek the advice of specialist counsel who has the time to sit and consider this.

And for the record, if it is going to the kids, your brother cannot take the money to get him out of debt. Furthermore, if the beneficiaries are under 18 it would require an application to the court under the Variation of Trusts Act 1958 to alter their entitlement. It is not enough for your brother just to agree (I thought I had mentioned this before, but clearly not) to a Deed of Variation.