The Lemon Fool

Hi folks

Relating to previous thread where we were unable to get a will completed before my wife's aunt passed away viewtopic.php?f=2&t=40217

Because there is no will, my understanding of the intestacy rules indicates that the estate should be distributed as follows...

sister - 25%
brother - 25%
daughter of deceased sister - 25%
son of deceased brother -12.5%
daughter of deceased brother - 12.5%

The aunt had over the years said that she was leaving her house to my wife (daughter of deceased sister).

The question arises - does the desire to leave the house to my wife have any legal standing? The brother and sister would be happy for their shares to be used, but the other niece and nephew (who had little to do with the aunt) are currently not aware of the aunt's wishes. They would be unlikely to create any issues if there was a legal basis for their shares to be reduced, but if there is no legal basis, then we would not pursue it.

The probate is being applied for by the brother and sister, if that makes any difference.

regards
elkay

elkay wrote:Hi folks

Relating to previous thread where we were unable to get a will completed before my wife's aunt passed away viewtopic.php?f=2&t=40217

Because there is no will, my understanding of the intestacy rules indicates that the estate should be distributed as follows...

sister - 25%
brother - 25%
daughter of deceased sister - 25%
son of deceased brother -12.5%
daughter of deceased brother - 12.5%

The aunt had over the years said that she was leaving her house to my wife (daughter of deceased sister).

The question arises - does the desire to leave the house to my wife have any legal standing? The brother and sister would be happy for their shares to be used, but the other niece and nephew (who had little to do with the aunt) are currently not aware of the aunt's wishes. They would be unlikely to create any issues if there was a legal basis for their shares to be reduced, but if there is no legal basis, then we would not pursue it.

The probate is being applied for by the brother and sister, if that makes any difference.

regards
elkay

I should imagine that if all the beneficiaries agreed, then there should be no problem in drawing up a Deed of Variation but no doubt some legal eagle will be along shortly.

Dod

elkay wrote:
The question arises - does the desire to leave the house to my wife have any legal standing?
elkay

No.

Dod101 wrote:I should imagine that if all the beneficiaries agreed, then there should be no problem in drawing up a Deed of Variation but no doubt some legal eagle will be along shortly.

There's no Will, so nothing to Vary, but the process is similar. A Beneficiary is under no obligation to accept their inheritance, however IIRC they must decline ALL of the inheritance, they can't pick and choose.

As you say, an expert will arrive shortly, but I think in this case the beneficiaries would end up Gifting their share of the property once the process is complete, or selling for a nominal sum, then there's all the Stamp Duty potential minefield

elkay wrote:The brother and sister would be happy for their shares to be used, but the other niece and nephew (who had little to do with the aunt) are currently not aware of the aunt's wishes

I think in this case it relies on the co-operation and attitude of the benefciaries. Depending on the size of the Estate, how much of it is the house value, whether beneficiaries still want their 'cut' according to law, etc. then this could be really simple, or a complete nightmare

Good luck with it all.

Paul

My brother died intestate.

You can have a 'Deed of Variation' produced, but it must be completed within in two years and all the 'previous' beneficiaries must agree with the changes to their allocation under the intestacy rules.

Far too much was going on so I left it to a solicitor to complete for me.

This was in England.

Good luck

Crazbe7

You might be able to use the common law principle known as "Donatio Mortis Causa", which covers gifts made in contemplation of imminent death.

There are a lot of articles on the subject. Here is one:

https://www.thegazette.co.uk/wills-and-probate/content/103415

I used Donatio Mortis Causa when I was co-executor of a friend's estate, dealing with items which had been lent out (the request was that everything was to be kept by the borrowers) and a couple of other items, effectively taking them out of the will.

Bear in mind that executors are liable in
the event of complaints about maladministration of the estate.

In this case my potential liability was less than £5,000 (something that I could easily cover) and all of the beneficiaries were happy with the arrangement after I discussed it with them (so I reckoned that there would be no comeback).

Given that you are looking at varying the distribution of the entire estate, I recommend consulting a solicitor who specialises in probate (I'm not an expert, but I do have a Law degree!)

SalvorHardin wrote:You might be able to use the common law principle known as "Donatio Mortis Causa", which covers gifts made in contemplation of imminent death.

There are a lot of articles on the subject. Here is one:

https://www.thegazette.co.uk/wills-and-probate/content/103415

I used Donatio Mortis Causa when I was co-executor of a friend's estate, dealing with items which had been lent out (the request was that everything was to be kept by the borrowers) and a couple of other items, effectively taking them out of the will.

Bear in mind that executors are liable in
the event of complaints about maladministration of the estate.

In this case my potential liability was less than £5,000 (something that I could easily cover) and all of the beneficiaries were happy with the arrangement after I discussed it with them (so I reckoned that there would be no comeback).

Given that you are looking at varying the distribution of the entire estate, I recommend consulting a solicitor who specialises in probate (I'm not an expert, but I do have a Law degree!)

I think you’re right to advise seeing an expert.

The OP says “The aunt had over the years said that she was leaving her house to my wife (daughter of deceased sister).”
There is no indication that this was “in contemplation of imminent death” but it might have been - depends on the circumstances. I dealt with a case where the deceased had told a friend that he was going to leave his property in Spain to some other friends - sadly this had no weight and the executors had no inclination to pay it any heed (I’m sure they were correct).

There are, however, other circumstances which might apply. If your wife had been looking after or supporting the deceased in expectation of getting the house there might be some argument although I think it doubtful.

Best wishes,

Steve

I don't know the answer either. But a key question to elkay in the meantime.

Does the house constitute more or less than the 25% share of the estate your wife is due?

Note: https://www.kingsleynapley.co.uk/resour ... -death.pdf

You can use a Deed of Variation to change how the estate has been divided up under the rules of intestacy, just as you would with a Will.

Which of course relies on all those who are losing out being willing.

Gryff

DrFfybes wrote:

elkay wrote:The question arises - does the desire to leave the house to my wife have any legal standing?
elkay

No.

elkay wrote:They would be unlikely to create any issues if there was a legal basis for their shares to be reduced, but if there is no legal basis, then we would not pursue it.

End of thread, surely? All talk of a deed of variation is irrelevant to the question.

(Unless someone contradicts DrFfybes, of course.)

Scott.

I do not think that that is the case and Crazbe7’s comments seem to bear that out. The wish is to vary the rules of intestacy and if all the beneficiaries agree thenI do not see that that is any different from varying a Will drawn up by the deceased.

A variation of these rules is the very essence of the solution. Whether or not the beneficiaries will all agree is of course another matter……….

Dod

swill453 wrote:

elkay wrote:They would be unlikely to create any issues if there was a legal basis for their shares to be reduced, but if there is no legal basis, then we would not pursue it.

End of thread, surely? All talk of a deed of variation is irrelevant to the question.

Why? A voluntary Deed of Variation surely IS "a legal basis for their shares to be reduced". It needs to be agreed by all beneficiaries whose share is reduced. Not necessarily all beneficiaries. So depends on the overall size of the estate.

I do think DrFfybes is incorrect that they have to give up ALL their claim in order to sign a DoV. I'm sure they can give away any part. Just enough for the house to form elkay's wife's share.

Gryff

Dod101 wrote:I do not think that that is the case and Crazbe7’s comments seem to bear that out. The wish is to vary the rules of intestacy and if all the beneficiaries agree thenI do not see that that is any different from varying a Will drawn up by the deceased.

A variation of these rules is the very essence of the solution. Whether or not the beneficiaries will all agree is of course another matter……….

I interpret the phrase "legal basis" as saying if the promise is not legally binding then they won't proceed.

Perhaps elkay can clarify?

Scott.

gryffron wrote:I don't know the answer either. But a key question to elkay in the meantime.

Does the house constitute more or less than the 25% share of the estate your wife is due?
...

Gryff

From the OP's other thread:

She owns her own, modest property, but we understand she has some kind of loan on the equity. Other assets are minimal.

So it looks as if the house is the only significant asset. The post seems to suggest there may have been some sort of mortgage (equity release perhaps?), so there may not even be a house to inherit once the loan is paid off - assuming the loan is more than the value of the rest of the estate. (Hope I'm wrong, but that's what it sounds like to me)

Thanks for all the replies folks, all very useful.

The house after the small mortgage is paid off comprises approximately 60% of the estate, so it would be possible for the brother and sister to make up the difference from their share. They were also intending to pass some of their share on to other family that don't receive according to the intestacy rules - sister-in-laws, and grand-nephews/nieces, so using up most of their shares would impact how much they could pass on to them.

A side issue is that the nephew and niece would receive more than the deceased and the siblings would have intended, as they were not really involved in her life.

I'll have a chat to the brother and sister, but I suspect that they will not want to rock the boat, and cause any potential disruption within the family - so they will probably not look for any intervention, and it will be an interesting conversation about how they want to distribute their shares.

My wife isn't overly concerned about the value of what she receives, but is more concerned about the "undeserving" niece & nephew receiving more than they should...I'll have to explain that they aren't really receiving it from the deceased party, but in effect it is their father's share.

One potential complication would be the brother giving funds as a gift, as I suspect their may be IHT implications on his side, so I will talk to my solicitor about whether he should allow his share to be "varied".

The solicitor was originally only going to be doing the conveyancing of the property, but I've now asked him to assist with probate as well. Thank you all for your contributions, I feel I'm better placed for the conversations now with the brother and sister, and the solicitor.

elkay

gryffron wrote:
I do think DrFfybes is incorrect that they have to give up ALL their claim in order to sign a DoV. I'm sure they can give away any part. Just enough for the house to form elkay's wife's share.

Gryff

Looking at other replies, it may have changed, and as I said it was from memory when a friend didn't want/need all their share of their grandparents' house and moaned they had to say "no" to the whole lot.

I've just had a look and found this...
https://www.gov.uk/hmrc-internal-manual ... /ihtm35161
which seems to supprt what I remembered, although as we all know there'll be another guidance documents somewhere else saying exactly the opposite

Paul

DrFfybes wrote:I've just had a look and found this...
https://www.gov.uk/hmrc-internal-manual ... /ihtm35161
which seems to supprt what I remembered, although as we all know there'll be another guidance documents somewhere else saying exactly the opposite

Paul

That's referencing a disclaimer/renunciation. That is a different beast from a DoV. A DoV can reduce one's entitlement without extinguishing it.

elkay wrote:The aunt had over the years said that she was leaving her house to my wife (daughter of deceased sister).

The question arises - does the desire to leave the house to my wife have any legal standing?

The short answer is no. A mere expression of intent has no legal force.

The only time that such an expression might be enforceable is in a situation where `proprietary estoppel' arises. This is a situation where the deceased has promised to leave property to X, and X has relied on that promise to his own detriment. The law says that in that situation it would be unfair to ignore the promise.

A typical example (and such claims are quite common) is where a farmer tells his son "One day my boy all this will be yours". The son dutifully runs the farm for several decades, taking only a survival wage for his labours, in the belief that his efforts will be handsomely rewarded on his father's death.

But the father forgets to make a Will, so that on his death the farm is distributed according to the intestacy rules, i.e. if the farmer is a widower then equally between his children. In that situation the son would be able to make a claim against the estate, and would almost certainly succeed.

Unfortunately, as your wife appears to have placed no reliance on the promise, still less incurred any detriment, I can't see that she would have any valid claim.

Clitheroekid wrote:

elkay wrote:The aunt had over the years said that she was leaving her house to my wife (daughter of deceased sister).

The question arises - does the desire to leave the house to my wife have any legal standing?

The short answer is no. A mere expression of intent has no legal force.

The only time that such an expression might be enforceable is in a situation where `proprietary estoppel' arises. This is a situation where the deceased has promised to leave property to X, and X has relied on that promise to his own detriment. The law says that in that situation it would be unfair to ignore the promise.

A typical example (and such claims are quite common) is where a farmer tells his son "One day my boy all this will be yours". The son dutifully runs the farm for several decades, taking only a survival wage for his labours, in the belief that his efforts will be handsomely rewarded on his father's death.

But the father forgets to make a Will, so that on his death the farm is distributed according to the intestacy rules, i.e. if the farmer is a widower then equally between his children. In that situation the son would be able to make a claim against the estate, and would almost certainly succeed.

Unfortunately, as your wife appears to have placed no reliance on the promise, still less incurred any detriment, I can't see that she would have any valid claim.

I am familiar with estoppel'arguments. However in your example if the farmer only "told" the son and there is no corroborating evidence to support that claim, then would a court accept that rather self-serving claim by the son?

I suppose one might infer such a promise from his labours on the farm. But is that "proof"?

My dad used to always tell me as a kid that "one day this will all be yours". As it turned out that happened. But it never crossed my mind that he was legally bound by that.

Clitheroekid wrote:A typical example (and such claims are quite common) is where a farmer tells his son "One day my boy all this will be yours". The son dutifully runs the farm for several decades, taking only a survival wage for his labours, in the belief that his efforts will be handsomely rewarded on his father's death.

But the father forgets to make a Will, so that on his death the farm is distributed according to the intestacy rules, i.e. if the farmer is a widower then equally between his children. In that situation the son would be able to make a claim against the estate, and would almost certainly succeed.

That is very interesting. It's quite close to the situation my brother and I have right now. There is a will, and everything in the will is 50/50, which includes dad's share of the business that he and brother ran, meaning I would inherit part of brother's business. I've said I'll sign a DOV.

Lootman wrote:I am familiar with estoppel'arguments. However in your example if the farmer only "told" the son and there is no corroborating evidence to support that claim, then would a court accept that rather self-serving claim by the son?

I suppose one might infer such a promise from his labours on the farm. But is that "proof"?

No, as I said, a mere promise by itself is of no legal consequence. That's why an essential element of a successful estoppel claim is that the claimant must be able to prove that he has `acted to his detriment' in reliance upon the promise.

In non-legal terms he has to prove that he deserves the inheritance, and that it would be unfair not to enforce the promise.

resurrecting this ,sorry ,to be clear - one can have a DOV to alter intestacy rules ?
Obviously with agreement of beneficiaries involved ?