# Where there is a will there is confusion



## rmrmrmrm2007 (19 Oct 2009)

My Father in law died earlier this year. My husband was informed within two months of his fathers passing that his fathers will divided 50% to spouse of deceased and 25% each to deceaseds two sons. My husband and his brother were since informed that all funds were in a joint account between the mother and father and therefore the sons were entitled to nothing! We are talking about a considerable amunt of money here, all of which the father made. My husband and his brother understand the family home must go to the mother but they are sour about getting nothing given the father explicitly said they should get 25% each of everything. One more complication, the mother is the Executor so they really have noone to talk to.
rm


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## j26 (20 Oct 2009)

If the money is held jointly, it automatically passes to the other one on survivorship, and doesn't form part of the estate.

There are 2 hurdles here if your husband wants to challenge it.
1. That his parents really held the money as tenants in common rather than jointly.  Unless that can be proved, there is no estate to distribute.
2 That the father failed in his moral duty by failing to provide for his son (Application under S.117 of the Succession Act, 1965)

It's a VERY high bar to cross, and I wouldn't rate your chances.  If it had been someone else, you'd have a better chance, but it's very unlikely to succeed against your husband mother.

I can understand you're dissappointed, but at the end of the day, people are free to dspose of their property as they see fit


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## Brendan Burgess (20 Oct 2009)

Would your chances not be higher of getting the mother's estate when she passes on? 

You are unlikely to win if you challenge it.

And if you challenge it, your mother in law is unlikely to leave anything to you in her will.

Brendan


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## mf1 (20 Oct 2009)

Brendan said:


> Would your chances not be higher of getting the mother's estate when she passes on?
> 
> You are unlikely to win if you challenge it.
> 
> ...



You should read the original post again. From the tone, relations are at an all time low between remaining parent, her loving offspring and her inlaws.  

If I was the Mother in Law, I'd be researching lovely retirement homes to spend all the lolly on myself and leaving what was left to a more deserving cause than a sour faced family!

mf


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## Pique318 (20 Oct 2009)

Surely the family home is part of the estate and therefore 25% of its value must go to each of the sons. If the mother doesn't want to sell, then the equivalent monetary amount (if available) must be paid to them, no ?

Or am I missing something here (was the house specifically left to the MiL) ?


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## truthseeker (20 Oct 2009)

rmrmrmrm2007 said:


> My Father in law died earlier this year. My husband was informed within two months of his fathers passing that his fathers will divided 50% to spouse of deceased and 25% each to deceaseds two sons.


 
Who informed him of this? A solicitor? The executor?



rmrmrmrm2007 said:


> My husband and his brother were since informed that all funds were in a joint account between the mother and father and therefore the sons were entitled to nothing!


 
Again - who informed them of this?



rmrmrmrm2007 said:


> We are talking about a considerable amunt of money here, all of which the father made. My husband and his brother understand the family home must go to the mother but they are sour about getting nothing given the father explicitly said they should get 25% each of everything. One more complication, the mother is the Executor so they really have noone to talk to.
> rm


 
Have they seen the will or is this all word of mouth?


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## j26 (20 Oct 2009)

Pique318 said:


> Surely the family home is part of the estate and therefore 25% of its value must go to each of the sons. If the mother doesn't want to sell, then the equivalent monetary amount (if available) must be paid to them, no ?
> 
> Or am I missing something here (was the house specifically left to the MiL) ?



You're missing that if the asset is owned jointly then it passes on survivorship automatically to the other joint owner.  It never goes into the estate of the deceased person.  I'm guessing that's the case here.

I'm not saying that it has happened in this case, but there are a couple of tricks that people play when drafting wills.  One is to get a person to witness the will, and "accidentally" let them see a big bequest to them (a witness to a will can't benefit from a bequest, so the gift fails).  Another is to leave a person a share of the estate, but then to arrange his or her affairs in such a way as to leave no estate.  

The scent of money buys a lot of loyalty and care.


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## rmrmrmrm2007 (20 Oct 2009)

relationships are actually good. Think of it this way, all in a three month period he lost his father, discovered his father left him considerable wealth and then discovered that it will not be happening. He accepts it all but is understandably very upset.#


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## rmrmrmrm2007 (20 Oct 2009)

Executor (mother) informed him on all accounts


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## justsally (9 Nov 2009)

[broken link removed] 
*
So can I decide who gets what?​*You may lay down in your will which persons
you choose to receive property or an asset
and it is for you to decide the way in which
your estate will be divided up. However, over
and above this, there is a law which will
ensure that *your surviving husband or wife*
receives a specific portion of your estate called
the ‘legal right share’. *This will be one half of*
*your estate if there are no children and one third*
*of it if there are. A spouse may renounce*​*their right to a legal share*.

Can someone explain this to me.   I thought the surviving spouse would receive two thirds of the estate, and the children one third.

Thanks


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## MrMan (9 Nov 2009)

Maybe give the woman a bit of time to grieve and she may decide how best to distribute it herself. Arguing over money that was never yours leaves a bitter taste and if relations are good it will come to him in time.


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## WaterSprite (9 Nov 2009)

justsally said:


> [broken link removed]
> *
> So can I decide who gets what?​*You may lay down in your will which persons
> you choose to receive property or an asset
> ...



The 2/3 and 1/3 rule only applies in the case of intestacy.  The paragraph above sets down the minimum that you have to leave your spouse (or, rather, what your spouse will get, regardless of your will).


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## justsally (9 Nov 2009)

Ah, that explains it.

Thanks for your helpful and quick reply.


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## Mr. C.J.H. (10 Nov 2009)

j26 said:


> If the money is held jointly, it automatically passes to the other one on survivorship, and doesn't form part of the estate.


 
Correct. This is in all likelihood what has happened with both the bank account and home.



j26 said:


> There are 2 hurdles here if your husband wants to challenge it.
> 1. That his parents really held the money as tenants in common rather than jointly. Unless that can be proved, there is no estate to distribute.


 
In the case of joint property/ deposists held by a husband and wife there is a very strong, indeed almost irrebuttable presumption that survivorship applies. One would need some very credible evidence that it was not intended by the testator that the ownership of the property/ deposit was to pass in this manner. 





j26 said:


> 2 That the father failed in his moral duty by failing to provide for his son (Application under S.117 of the Succession Act, 1965)


 
A section 117 claim can only be brought against the value of the Deceased's Estate. i.e. property that the Deceased's estate was beneficially entitled to on his death. As the joint property/ deposit does not form part of the Estate, meaning the Estate is essentially worthless or at best of very limited value, a section 117 claim is utterly pointless. 

In any event, section 117 action cannot be brought where the entire of the Estate of a Deceased is left to a surviving spouse who is also the parent of the plaintiff-child. So even if the Deceased had left 100% of his Estate to his spouse the children would have no come back.


It's a VERY high bar to cross, and I wouldn't rate your chances. If it had been someone else, you'd have a better chance, but it's very unlikely to succeed against your husband mother.

I can understand you're dissappointed, but at the end of the day, people are free to dspose of their property as they see fit

[/quote]


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## mercman (10 Nov 2009)

mf1 said:


> If I was the Mother in Law,mf



But alas you are not.

The easiest way to get confirmation is to have sight of the will. What is been told does not nessessarily mean it is correct. Whilst the will provides for all three persons, we do not know the context of the deceased wishes, for which if different as mentioned above brings the entire into a completely different arena.

But I do agree, allow all time to grieve. Unless the MIL decides to act irrationally time and patience will be the ultimate healer.


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## Bronte (10 Nov 2009)

The mother has done absolutely nothing wrong.  She has lost her life partner only two months ago.  She has told her children what the will says.  Just because the children assumed it meant they would get the money in the bank was their error not hers.  I hope she has a happy comfortable and wealthy retirement and if her sons are lucky she may leave her estate to them.  

I see no relevance to the statement that the father left a lot of money that he made himself, the inference being that the children are somehow entitled to it and that the mother is a stay at home lady without any entitlement after a lifetime of love and devotion to looking after her husband and bringing up her sons.


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## lightswitch (10 Nov 2009)

Bronte said:


> I see no relevance to the statement that the father left a lot of money that he made himself, the inference being that the children are somehow entitled to it and that the mother is a stay at home lady without any entitlement after a lifetime of love and devotion to looking after her husband and bringing up her sons.


 
Completely agree with this.  Am astounded that a child would expect to get 25% of the extate when one parent is still alive.  They should have more respect for their mother and allow her to grieve for her husband and enjoy the financial security he left her with.


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## luckylou (10 Nov 2009)

Bronte said:


> The mother has done absolutely nothing wrong.  She has lost her life partner only two months ago.  She has told her children what the will says.  Just because the children assumed it meant they would get the money in the bank was their error not hers.  I hope she has a happy comfortable and wealthy retirement and if her sons are lucky she may leave her estate to them.
> 
> I see no relevance to the statement that the father left a lot of money that he made himself, the inference being that the children are somehow entitled to it and that the mother is a stay at home lady without any entitlement after a lifetime of love and devotion to looking after her husband and bringing up her sons.



Very well put Bronte!


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