Legal Help Required Please.

[Mellor 3 Ward 4]

M3W4, I'm not offering an opinion here, aside from saying that what you are hoping for from all this does sound right, just and fair.

I hope for everyone's sake, it sorts itself out satsifactorily, and my belated condolences to you on your father's passing.

Thanks for your comments - it's a bad time anyway, and with my second step mother still distraught it's proving hard for her in particular.

 

[bhaexpress]

Thanks for your comments - it's a bad time anyway, and with my second step mother still distraught it's proving hard for her in particular.

Commiserations all round, 'W' is for 'Witch' I take it, you could always call her 'P' for the parasite she so clearly is.

Good luck with it all.

 

[glasfryn]

having read the whole thread firstly can I also add my commiserations its always hard in this situation for you your sister and you step mum.
I am in a simular position after divorce I was left with the children and had to sell the home we were in and find something else and after finding someone else came the delicate sorting of a will and finally we agreed that whoever lived longest would keep the house until death and then it would be split 4 ways quarter each to my children and quarter each to my wifes children.
As it happens they are much like you and have made their own way in the world and whatever there is will make not a lot of difference to their lives.
I wish you well at this sad time.

 

[Mellor 3 Ward 4]

I think that for W to make a claim, she would have to prove that she was a dependent at the time of your father's death.

Therein appears to lie the problem that we have.

As my father was paying her maintenance she is therefore saying she is /was a dependent.

Quite why he was still paying her anything beggars belief (IMO and of course I'm biased!) as I said before, she came into the marriage with nothing and left 4 years later with half of a fairly large house, the car and all the furniture.

Anyway thanks everyone for all your comments and advise.

 

[Chicken Runner61]

Sorry to put a downer on this but you need to find out what was on the order the court made for maintenance at the time of the divorce.

If your dads ex was given spousal maintenance your dad should have put a end time on it and got her to agree that she signed away any inheritance claims. If it was left open and or is not stated she may have a claim on his estate.

The fact he never stopped paying is worrying as it could be the court intended for him to "keep" her until death and that might have included using his estate if he died before her.


If your dad had a crap solicitor he might have been
badly treated or maybe he did want to look after her

There is a lesson for all here. Divorce is not a simple issue even without kids. Its all very well going to a solicitor but you need to make sure they act in YOUR interests and you need to think what might happen in the future.


If you can find the court order and see what it says - then go and see citizens advice. In any event I would let her try and claim and defend it on the basis that your Dads widow needs his estate to look after her in old age and his ex has had 18 years of maintenance and hope a judge goes along with that.


I'm not a legal expert but neither are many solicitors and judges "expert" in fact most are pretty crap especially in family and probate matters. I know that sounds weird but when you get involved with this stuff you discover how much the experts DON'T know

I have known of solicitors losing peoples wills and family missing out on their inheritance .

 

[Mellor 3 Ward 4]

Sorry to put a downer on this but you need to find out what was on the order the court made for maintenance at the time of the divorce.

If your dads ex was given spousal maintenance your dad should have put a end time on it and got her to agree that she signed away any inheritance claims. If it was left open and or is not stated she may have a claim on his estate.

The fact he never stopped paying is worrying as it could be the court intended for him to "keep" her until death and that might have included using his estate if he died before her.


If your dad had a crap solicitor he might have been
badly treated or maybe he did want to look after her

There is a lesson for all here. Divorce is not a simple issue even without kids. Its all very well going to a solicitor but you need to make sure they act in YOUR interests and you need to think what might happen in the future.


If you can find the court order and see what it says - then go and see citizens advice. In any event I would let her try and claim and defend it on the basis that your Dads widow needs his estate to look after her in old age and his ex has had 18 years of maintenance and hope a judge goes along with that.


.

thanks for your help

 

[Mellor 3 Ward 4]

Mellor, if you can bear with me, I will pass this info onto my father. He is an ex-solicitor. He will know where you stand. I will be able to supply you with info. on Monday.

Bof Fun - any news please? - I intend to see a solicitor shortly, however a second opinion would be good. Ta.

 

[Chicken Runner61]

Go and see as many solicitors as you can. They normally don't charge for the first visit.

Then decide what you have to do and if you do decide to use one you can pick the one you felt was the most proactive.

Good luck

 

[lost in london]

The Act you need to be looking at is the Inheritance (Provision for Family and Dependants) Act 1975. This Act enables certain people (listed in s1) to apply for provision from the estate. Included in that are people who the deceased was maintaining at the time of his death; your step mother would clearly fall into this category (I think it's something like s1(1)(e)).

The court will then look at s2, which sets out the different types of order it can make, this includes a lump sum order, a property adjustment order, periodical payments.

s3 then lists the considerations that the court has to take into account. It's very much done on a case by case basis, and it's difficult to know exactly what the court will order, however as someone said above (apologies for not noting your name) they will probably be influenced by the fact that he had continue to maintain her for a number of years, and will take note of any court order (if there was one, he could potentially have been doing this voluntarily?).

I've no idea if any of the below will make any sense (I've copied selected bits from the Act), but if you spend a bit of time trying to work out what it means, it might mean that any meeting with a solicitor (highly recomended) makes more sense. And can I add that I've done this from memory after studying it a while ago, so for God's sake don't take it as gospel, I'm not a solicitor yet.

1 Application for financial provision from deceased's estate
(1) Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons—

[(a) the spouse or civil partner of the deceased;

(b) a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;]

[(ba) any person (not being a person included in paragraph (a) or (b) above) to whom subsection (1A) [or (1B)] below applies;]

(c) a child of the deceased;

(d) any person (not being a child of the deceased) who, in the case of any marriage [or civil partnership] to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage [or civil partnership];

(e) any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;

that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.

any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased; .....

(2) In this Act “reasonable financial provision”...

(b) in the case of any other application made by virtue of subsection (1) above, means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance...

(3) For the purposes of subsection (1)(e) above, a person shall be treated as being maintained by the deceased, either wholly or partly, as the case may be, if the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money's worth towards the reasonable needs of that person...

3 Matters to which court is to have regard in exercising powers under s 2
(1) Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters, that is to say—

(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

 

[Barrel of Fun]

Bof Fun - any news please? - I intend to see a solicitor shortly, however a second opinion would be good. Ta.

Hi Mellor. Waiting to hear back sometime today so I will let you know ASAP.

Cheers and keep your chin up!

 

[Barrel of Fun]

Look at section 1 of the Inheritance (provision for Family & Dependants) Act
1975 which is (I think) still in force - the link is below.

There is also the question as to exactly what order was made on the divorce.

http://www.statutelaw.gov.uk/legRes...wseLetter=I&NavFrom=1&activeTextDocId=1239280

I don't think that I have been much help. My father did not specialise in Matrimonial law, but thought he may know about it. He didn't want to commit to advice without knowing more facts.

I know another lawyer who deals with wills/matrimonial so will chase her up for advice.

Sorry if I haven't been that much help.

 

[Mellor 3 Ward 4]

Many thanks to those of you who offered advice on this one.

We have now heard from her Solicitor, and it appears that legally she does have the right to make a claim. How valid that claim is remains to be seen. The law stinks IMO. Does a Will not mean anything! What about my father's wife of the last 18 years!

We of course now have a Solicitor acting for us - it could start to get expensive!

 

[dougdeep]

Best of luck.

 

[severnside gull]

I am in a vaguely similar position having re-married and adjusted my will to exclude provision for my first partner to whom I continue to make a maintenance payment and to make my current partner my sole beneficiary.
My solicitor assured me this was valid and that "although my first partner (as well as the children if they wanted) could contest the will if she (they) so chose, my determination was unlikely to be overturned". I have to say I am not entirely comfortable with that view as although I will leave very little, the value of a house nowadays is good enough reason to go through the courts and the legal fees would make sure there was nothing left in the end. He suggested that judicial opinions have changed over the years and whereas years ago your last will and testament was almost unchallengable, it is now anything but. I am contemplating switching the house into my current partner's name as a solution but heaven forbid she walked away from the marriage straight after she could then throw me out !

 

[Mellor 3 Ward 4]

Just a quick update on this, and yes it's good news - actually it's BRILLIANT NEWS!

We have just received confirmation that the matter has been finalised.

I'm not going to go into too many details on here but all I will say is that W (my first step mother who was making the claim) got not a single penny more, and that my late Father's wishes can be now be carried out.

He would have been so pleased.

 

[Vankleek Hill Seagull]

Just a quick update on this, and yes it's good news - actually it's BRILLIANT NEWS!

We have just received confirmation that the matter has been finalised.

I'm not going to go into too many details on here but all I will say is that W (my first step mother who was making the claim) got not a single penny more, and that my late Father's wishes can be now be carried out.

He would have been so pleased.

Excellent news M3W4. Glad to hear the situation has been sorted to your satisfaction.

 

[BensGrandad]

I have a similar problem. dad died years ago and left his house to my mother who in turn made it over to my brother, my sister and myself, who all have children. Sister remarried and moved away and bought her house with her new husband. During the last month of her life she made a will leaving everything to her husband and stating that if anything happened to him any money etc left should go to her 3 children, they had no children together and as she thought he had no family living. He made a similar will leaving everything to her and then to her boys but he knew she was dieing and so did she but we didnt until the last couple of weeks. He has now sold the marital home and it transpires that he has a sister and a child earleir in life who have all now surfaced because he has the money that he sold the house for.

We are told that he still has the claim on1/3rd of the house my mother lives in because it was my sisters. My mother wants that share to go my sisters children . her grandchildren, is there anything that we can do to ensure that they get something out of it which was my fathers and is my mothers wish. This doesn't affect mine or my brothers share in any way so we will neither gain nor lose out of what happens. As it stands I believe that he can spend all the money from the marital home then geta share of my mothers home and piss the lot up the wall or give it to his sister and when he dies if there is anything left my nephews get some if not tough. This doesnt seem right to me.