My Stepmother Will Inherit Everything – is that fair?
Losing a parent is hard, and very few people have suitable advice on tap in the way that our Peace of Mind Service members have. It is increasingly common for parent to remarry either after divorce, or after the death of one. A stich in time saves nine, or maybe far more, later on. Advance planning is the key for prudent parents. It isn’t as if all step parents are gold diggers, but they too need to be considered properly in legal planning matters, not just the children.
So the children of the original couple, as well as managing their grief over the death of the surviving parent, discover that every penny your parents had is about to go outside the family. Whether there is a basic Will or no Will at all, this is still likely to happen. It doesn’t need too. It is perfectly possible to look after the new spouse and ensure the original children still receive their fare share. Just get your parents to contact us for help before it is too late – ideally before the first parent dies.
What do you do if your parent accidentally or deliberately leaves everything to their new spouse or partner – your stepparent.
It isn’t fair, but can you do anything about it AFTER the event (before the event is straightforward, with our advice, but it is you parent/s who have to do get in touch with us.
So what are the after the event options?
1) Your parent/s legal planning took such possibilities into account. Sadly, remarriage cancel old Wills, and under the Rules of Intestacy (where there is no valid Will) all or the bulk of the estate is likely to go to the new spouse. But hopefully, the part belong to the spouse who died first – traditionally Dad – will be in Trust for the use of the surviving parent, and on their death (or sometimes remarriage) will go on to their children or other beneficiaries of choice.
But the same will not be true of the survivor, whose Will has been cancelled by remarriage. But a good proportion, even if delayed, is better than none at all.
For the survivors estate to remain in the bloodline, they will need to renew their planning, and also take into account the needs of their new spouse, who could otherwise challenge the new Will. So ongoing planning is needed, which is where our Peace of Mind Service can help ensure everything stays on track through the years. There are useful asset protection aspects of this type of planning as well.
2) If there is a Will, it may be possible to challenge it.
For example, a Will created once mental capacity has been lost, or while the parent is ill or recovering from an operation, or makes the Will on their death bed just may be challengeable. But planning ahead is way cheaper than Court cases, and a lot less upsetting for everyone. The issue is whether or not your parent was of “sound mind” when the will was signed. There is a presumption that the testator had capacity at the time of signing, and you will have to prove otherwise which is far from easy.
3) Undue Influence.
Undue influence means the parents she act against his or her own wishes. Undue influence is hard to demonstrate, but these issues can help support such a claim:
- the Will is unnatural in what is does – not an easy one to show.
- your parent was of a weak mind and susceptible to undue influence at the time the Will was made.
- Pressure was exerted by your stepparent who had the opportunity to exercise undue influence and
- the step parent did use that opportunity to disinherit you to their benefit.
Direct evidence is not essential, though it would clearly help. Circumstantial evidence such as poor health or mental condition of the parent and the opportunity available to an “influencer”. Flattery, persistence or solicitations do not on their own mean undue influence. Influence may be perfectly acceptable to the Courts, and the line is fine. Can you prove that your parent was in effect subject to the strong will of their new partner and could not reasonably exercise their own free will to the Courts satisfaction?
The earlier any challenge is raised the likelier that a negotiated settlement can take place. Going to Court is a high stakes operation, and if the Judge things you have a poor case, the costs of both sides could be awarded against you, even to the extent of bankrupting you. So think twice and make sure you get a good honest solicitor (we can always recommend one – our job is to prevent things going wrong, once they have a solicitor or barrister is needed to go to Court.)
4) Other grounds to contest a Will include:
a) lack of witnesses
c) a later will.
d) Parents lack of knowledge of the effect of the Will.
e) Testator’s lack of intent: the parent could have been presented with a document and just been asked to sign it without explanation.
f) Proprietary estoppel – a potential beneficiary had been promised something, often a business AND had been disadvantaged by holding up their end of the bargain by accepting low wages to help that business.
g) You were regularly supported by the deceased parent and are in need of such support, but have been left little or nothing.
h) Apply to remove your step parent as personal representative of your deceased parents Will or intestacy (if nominated in the Will.) If they are allowed to continue and make improper distributions to themselves or others, they may be removed and held liable for those actions. You, as a person interested in the estate, can petition the Court to remove them as personal representative because of mismanagement of the estate and failure to discharge their duties in accordance with the Will (or intestacy). If it comes to Court, you will need to prove their unsuitability as a executor/ personal representative and demonstrate improper acts.
Your parent may change their Will and other estate planning documents to benefit his new partner, or that partner too could challenge the Will. As long as your parent has testamentary capacity and formal signing procedures are followed, they able to do so at their own discretion.
The burden is on you, the person alleging the undue influence or lack of capacity, to prove it, which may be a costly very very very expensive process.
Lastly, it is important to keep in mind the consequences if your parents do not make will during his lifetime. Without a will, the Rules of Intestacy will apply
As always, we recommend early planning which is regularly reviewed as family, Tax and Legal matters are constantly changing. So it makes sense to join our Peace of Mind Service and benefit from discounts and, crucially, ongoing advice.