20/08/2011 12:33:46
sm1
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My father died in '91 leaving everything to stepmother specifying that he 'knew' she would look after his three children (2 by her). Only asset was £1m+ house so seemed normal for stepmother to live in it. Recently she has sold it, has given large sums of money to her two and plans to leave rest to her grandchildren even tho' not mentioned in Will. I am being excluded. Have I a case? What steps can I take. Am pensioner, destitute and living in Spain, do I qualify for legal aid?? Help!!
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22/08/2011 11:30:17
www.clicklegalservices.co.uk
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I have to say that it, on first blush, is not looking hopeful. You say that your father left everything in the will to your stepmother - and (presumably) made no provision at all for you at all? I assume that you were ineligible at the time probate was granted to make any claim for provision under the Inheritance (Provision for Family and Dependants) Act 1975.
I read into it that you are suggesting that the gift was subject to an unwritten "trust" or obligation in effect for "her to do the right thing" in effect - but again very difficult to prove - and why not simply make provision in the will?
If he has willed the house to her, that is it - a person can, generally speaking; and as long as of sound mind, do what they want with their property, unless it is alleged that he did so under duress or fraud or undue influence. After that period of time it would be extremely difficult to prove. Had he wanted to simply allow your step mother to live there - and not to have any interest in the sale proceeds, he could have easily have given her a life interest.
I doubt you would qualify for legal aid if you live in Spain - but I do not know the eligibility requirements in this regard.
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22/08/2011 12:29:49
sm1
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www.clicklegalservices.co.uk wrote:
I have to say that it, on first blush, is not looking hopeful. You say that your father left everything in the will to your stepmother - and (presumably) made no provision at all for you at all? I assume that you were ineligible at the time probate was granted to make any claim for provision under the Inheritance (Provision for Family and Dependants) Act 1975.
I read into it that you are suggesting that the gift was subject to an unwritten "trust" or obligation in effect for "her to do the right thing" in effect - but again very difficult to prove - and why not simply make provision in the will?
If he has willed the house to her, that is it - a person can, generally speaking; and as long as of sound mind, do what they want with their property, unless it is alleged that he did so under duress or fraud or undue influence. After that period of time it would be extremely difficult to prove. Had he wanted to simply allow your step mother to live there - and not to have any interest in the sale proceeds, he could have easily have given her a life interest.
I doubt you would qualify for legal aid if you live in Spain - but I do not know the eligibility requirements in this regard.
Many thanks for your speedy and very clear reply. I do not quite understand however what you mean when you say you presume I would have been ineligible at the time for remedy under Family & Dependants Act 1975 - what would have made me ineligible? What could/should I have claimed under that? My brother says that he remembers the parents as being joint tenants so that the property - the only asset - would anyway have passed directly and solely to my stepmother?
Does that mean that even when it is sold - as it has been - she alone is entitled to entire proceeds?
edited by sm1 on 22/08/2011
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22/08/2011 15:33:15
www.clicklegalservices.co.uk
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If they held jointly - as opposed to as tenants in common (this has nothing to do with a tenancy) then, on death the property would pass automatically outside of the will - although there is provision under the Act to deal with this type of situation.
I apologise for the refernce to "assuming" - I said this on the premise that when your late father passed on, you considered your options at the time. There is a link here to the actual act http://www.legislation.gov.uk/ukpga/1975/63
As to eligibility - there is a 6 month time limit for issuing Court proceedings from the date of the grant of probate if you feel that inadequate financial provision was made.
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22/08/2011 19:27:28
sm1
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www.clicklegalservices.co.uk wrote:
If they held jointly - as opposed to as tenants in common (this has nothing to do with a tenancy) then, on death the property would pass automatically outside of the will - although there is provision under the Act to deal with this type of situation. I apologise for the refernce to "assuming" - I said this on the premise that when your late father passed on, you considered your options at the time. There is a link here to the actual act http://www.legislation.gov.uk/ukpga/1975/63 As to eligibility - there is a 6 month time limit for issuing Court proceedings from the date of the grant of probate if you feel that inadequate financial provision was made.
Thanks again for helpful reply. Just one more question - I did not 'consider my options' at the time of my father's death as I didn't know I had any. I was with the family for the funeral but since then have heard nothing about anything to do with the Will. When Probate is carried out do the Executors not have a duty to warn, say at least children of the deceased (or people mentioned, however loosely, in the Will)?
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