Can a solid Will still be contested?

[apinkraven]

My ex husband remarried a few years ago. We divorced over 20 years ago and had a house together. He bought me out and kept the house and still lives there with his new wife.

He recently made a will leaving everything to his new wife, i.e. the house and his pension worth near on £1 million. He has not left anything of value to our two children (both adults).

I know he has been coerced into doing that by his new wife. The house is solely in his name still and she is maintaining that she has contributed towards the mortgage and therefore should be entitled to the house and everything if he should die.

I had a bit of an argument with him saying that he should leave his half of the house to the children and he said why would he. I said well why wouldn’t he? He told me that his wife had expressed her concern about being put out of her home if he died, a home she had been living in and loved. The house is worth around half a million and together with his pension she will be one very rich widow.

I explained to him that he could put his half of the house in trust for the children with certain provisos such as if she remarries, dies or sells the house they can get their half then.

he said he wasn’t aware of this and I told him to get proper legal advice and get things set up properly which he said he would do. However since then he has spoken to the wife who has said she is upset with this decision as she still wouldn’t feel secure if the children owned half of the house and therefore he is still leaving everything to her. I know she has coerced him into this and will be walking away with everything whilst his children have nothing.

my question is: could my children contest the will even though he has made it as it is. We have no proof that he was coerced but with the amount of money involved with both house and mortgage why would a father who has a good relationship with his children otherwise totally disinherit them on remarrying?

[efpom]

To answer your question: If my understanding is correct, the starting position in English law is that a person is entitled to leave his estate on death to whoever he pleases. There is legislation to protect someone who can prove that he/she was dependent on the deceased, but on the facts you describe, this does not seem to be in play. If that is right, it would seem that your children could only contest their father's will on the ground of undue influence by his wife -you uses the word "coerce"-, but you also state that there is no proof of this.

You will, of course, know that you ceased to be a beneficiary of any previous will made by your now former husband, as you are deemed to have died the day before the divorce became final.

[apinkraven]

I know any new will negates the previous one but we always said everything would go to the kids. When he remarried I understood his new wife would have an entitlement by up to 50% but to take it all makes me mad. I know he has been guilt tripped into making it to her as when I explained he could leave it in trust he said he’d do that but she’s managed to change his mind on that too which really would only affect her in the fact she won’t have as much money at the end of it for herself.

Believe me I know it’s her by things she said to my son before he moved out of there and things my ex has said she’s said but no concrete proof.

[efpom]

Heaven forefend, but it could happen that your former husband's wife predeceases him, or that his children predecease him. We walk through a minefield every day.

However, the legal question you posed, I answered to the best of my knowledge.

You now say the following "I understood his new wife would have an entitlement by up to 50%".

I am slightly puzzled by that, but I conclude that you can only mean that should your former husband and his "new wife" divorce, he/she may have a claim on their former matrimonial home.

The present situation you describe, seems to me to to be an unfortunate consequence of your decision to agree with your former husband that he "buy out" your share of what was, on your divorce from him, the former matrimonial home, which is now the matrimonial home of his wife and himself.

[apinkraven]

When we divorced I took my share of the equity in the house which was rightfully mine.

I remarried and had my current house put as tenants in common so if anything happened to me my kids would get my half put in trust. My ex didn’t need to do that at the time as the whole of his house and assets was all his and willed to the kids.

Then he met his now wife and after marrying her made a new will leaving everything to her, house, pension, savings, the lot. I asked him why he hadn’t left half the house to his kids and he said his wife was worried that she’d have to leave her home if the kids inherited half. She’d given him the sob story and he agreed and made the Will.

He told me what he’d done and I explained that he could leave the kids an inheritance in a trust so she would be secure in the house and he said he didn’t realise that (I suspect he’s done a DIY Will as I’m sure a solicitor would have told him that) and would change it. She managed to talk him out of changing it saying she would feel like a tenant to our kids if that happened and he’s fallen for it.

When my son lived there, she said to him “this house is all mine now” amongst other similar comments. She has definitely influenced my ex who is easily led anyway when it comes to women.

She is also about 15 years younger than my ex so her predeceasing him is unlikely although you never know what life will throw at you.

They have no kids together, our two are his only offspring.

[efpom]

Your legal question, reformulated by me, for clarity is:

Can an otherwise valid will be challenged on the ground that the testator failed to make gifts to his adult non dependent children?

In the circumstances you describe, in my view, the answer is "No"