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Child Item

Changing a will after death

franklyfrank

Hi, a newbie here and I'm hoping someone might be able to answer this , I'll keep it as simple as u can.

My dad remarried some years ago, he has 3 kids from his first marriage (myself and 2 brothers) and he has 3 kids from his second marriage.

He made his will recently and it breaks down to the following.

Any money in his account is to be split between the 6 of us equally (I can't see this being too much)

He bought a house with his second wife , my step mother. Naturally enough the house will be hers if he goes first. When they were discussing the Will she was adamant that only her 3 kids (from his 2nd marriage) would then get an equal share of the house when she passes. My dad challenged this and said the house is to be sold and all 6 kids get an equal share and that was agrees upon and signed on with a solicitor. My concern is if he dies first can she then change the will and remove me and my two brothers and leave it only to her 3 children (we are all adults now) and if so is this something that could be contested when the time comes? The house is worth about 340k today for arguments sake so about 55k each. I hope I made sense and I hope someone can give me an answer. Thanks

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blackbox

I have no legal background but my understanding is as follows:

Adult children have no automatic rights.

Your post suggests that the second wife already owns half of of the house.

If he leaves his half of the house to his second wife, it becomes her property and she can do what she likes with it.

If he leaves his half equally to the six children, he could make a condition that they must let the second wife have the use of the house as long as she lives. The wife can still leave her own half to whoever she wants.

Peregrinus

Much depends on whether the couple bought the house as joint tenants (in which case, when one dies, the other automatically becomes owner of the entire house) or at tenants-in-common (in which case they each own a sepeparate share - and the shares need not be equal - and each can leave their share to who they wish). You can't know this without looking at the title to the house.

Radio5

Just to be clear also, each person makes an individual Will. The content may be similar but it is individual to the person. So if your dad dies first, your step-mother can then change her Will and leave the house and anything else she owns to whomever she wishes.

Ottoman_1000

https://www.boards.ie/discussion/2058337511/changing-a-will-after-death

If the house was purchased as joint tennats (which I suspect it was), that would be the norm for people in a relationship. Then whoever dies first the surviving partner will obtain all ownership of the asset and can do as they like with it from there on.

Peregrinus

https://www.boards.ie/discussion/comment/121820198#Comment_121820198

It's common for a couple who have both had prior relationships and who each have children from those relationships not to buy a house as joint tenants, but as tenants in common, as part of an approach to estate planning in which they don't mix their assets, so that each can leave their property to their own children.

Buying a house as tenants in common also enables them to own it in unequal shares, if one of them brings more money to the purchase than the other.

MrMusician18

How does the rule about not disinheriting your spouse play into this?if they are tenants in common, assuming no other assets then she'd at a minimum receive 1/3 of the husbands share of the house. A life interest could be left to her to allow her to remain living there. Assuming a 50/50 split, she would have 2/3 of the overall estate to distribute on her passing.

Peregrinus

https://www.boards.ie/discussion/comment/121822124#Comment_121822124

In this situation, as part of their estate planning, the spouses will often mutually waive their Succession Act rights.

3DataModem

"He bought a house with his second wife"

As said above; if he bought it jointly, and dies first, then his will is irrelevant. The house becomes wholly hers, and she can do with it (sell it, will it, etc) as she wishes.

User567363

Edit, cringe

And sub pefect family will pull at the heart strings again and again, but there is no such thing as perfect

Is your mother still alive?

i would become a workaholic, and study, save etc, until i was so wealthy 1/6 of a house wouldn't interest me

Be a nice 2 fingers to the step family

Padre_Pio

https://www.boards.ie/discussion/comment/121822273#Comment_121822273

I doubt the step family would care.

Let's the honest OP, I don't know how old your step mother is, but she could survive your father for 10 or 15 years.

Would you really be interested in 1/6 a house 15 years from now? Are you really that much at odds with your step mother that you would care?

Peregrinus

There is a legal device known as an agreement for mutual wills for use in precisely this situation.

Suppose A and B marry. Each of them already has children from a previous marriage, and each already has some accumulated wealth/property which they bring into the marriage. Very often they pool this, or some of it, to purchase a marital home, but the agreement for mutual wills can be employed whether or not this is the case.

A and B both have conflicting objectives when it comes to estate planning. A wants to know that, if they die first, the marital home and other assets will be available to B for the rest of B's life. But A doesn't want this to mean that A's own children will lose out on any inheritance, so wants reassurance that, when B dies, B's estate (by then, including property inherited from A) will be divided equally or proportionately between A's children and B's children. In return A is willing to commit that, should they survive B and inherit B's property, they will in turn leave the combined estate to the two sets of children equally or proportionately.

And B, of course, has exactly the same objectives and is willing to make exactly the same commitment.

So A and B make an agreement that they will each make a will in these terms and, crucially, that, whichever of them dies first, the survivor will not then change their will so as to cut out the children of the deceased partner.

The courts will enforce that, if necessary, by imposing a trust.

It works like this. Suppose, in the event, A dies first; B inherits all of A's property; B then makes a new will leaving their entire estate to their own children, with nothing for A's children; B dies.

A's children won't know about this until B dies and B's will is admitted to probate and they discover, to their horror, that they are left nothing. They head off to court. If there's evidence to show that A and B did make an agreement for mutual wills, the courts will reckon that it's unfair to allow B to induce A to leave them the whole of A's estate, and then welch on the deal to give A's children their due share. They regard that as a kind of fraud. So they'll impose a trust on the estate, to ensure that A's children get what they would have gotten, if B had honoured the agreement for mutual wills.

All of this depends on A's children (1) going to court to enforce their expectations under the agreement for mutual wills, and (b) being able to prove the existence and terms of the agreement. So if A and B do make an agreement for mutual wills, it's crucial that everybody who should benefit under it, on both sides of the family, knows about the agreement, knows about the terms of the agreement, and has a copy of the agreement. If some of the kids involved are still young when the agreement and the wills are made, then uncles, aunts, grandparents, whoever, have to be brought into the loop. Otherwise the whole thing falls over, and you're just dependent on the good faith and goodwill of the surviving partner to do the right thing.

Donald Trump

https://www.boards.ie/discussion/comment/121822115#Comment_121822115

Is there not a (rebuttable) presumption of joint tenancy when the conditions for such are satisfied?

foxsake

i was in a similar position to your dad.

the advice i received was that you can leave your possessions to who you wish but you cannot dictate who they leave those possessions to when they die.

so your dad can leave the house to his wife but he cant stipulate what she then does with it.

if he wants you to have a share of the house, he needs to leave it when he passes.

This is the general jist. notwithstanding any legal challenges

Peregrinus

https://www.boards.ie/discussion/comment/121822372#Comment_121822372

No. Whether co-ownership is a joint tenancy or a tenancy-in-common will be decided by the words of limitation in the instrument of title. The land registry will have recorded this either as a joint tenancy or as a tenancy-in-common because one of other of those exact terms will have been used in the assignment of the property to the couple, when they bought it.

Donald Trump

https://www.boards.ie/discussion/comment/121822578#Comment_121822578

The presumption exists under Common Law.

Obviously if otherwise is in the documents, it will be rebutted.

But it does exist

Peregrinus

https://www.boards.ie/discussion/comment/121822873#Comment_121822873

Well, fair enough, but all documents transferring interests in land in Ireland are required to be drawn up by solicitors, and even a minimally competent solicitor will state what kind of co-ownership is intended. So I don't think the common-law presumption would come into play all that often in practice.

But in the circumstances of this case I don't think it makes all that much difference.

If the spouses hold the house as joint tenants then, on the death of one spouse, the entire interest in the house passes to the other. But, per the OP, each spouse has agreed that, if they are the surviving spouse, they will leave the house to the children of both of them.

On the other hand, if the spouses hold the house as tenants in common, each has agreed to make a will leaving their interest in the house to the other spuose, if the the other spouse survives them, and to the children of both of them, if the other spouse does not survive them.

Either way, the outcome ought to be the same — on the death of the first spouse, the second spouse gets the house and, no the death of the second spouse, the children of both spouses get the house.

And, either way, the risk is the same — after the death of the first spouse, the second spouse will make a new will cutting out the children of the first spouse.

And, either way, the way to manage that risk is the same — an agreement for mutual wills, which all of the children and/or their adult relatives know about, and have a copy of.

3DataModem

"And, either way, the way to manage that risk is the same — an agreement for mutual wills, which all of the children and/or their adult relatives know about, and have a copy of."

That doesn't mitigate the risk of the surviving spouse creating a new will. The moment that new will is created, the mutual wills are irrelevant. You can promise your husband "I'll leave it to all of them" then change your mind, and this seems likely in the OPs case TBH.

Peregrinus

https://www.boards.ie/discussion/comment/121826525#Comment_121826525

No. Check out post #12.

ittakestwo

https://www.boards.ie/discussion/comment/121822303#Comment_121822303

Tbh I would care if i was the OP even if I did not need the money. Alot of rows in families is not actually over greed but about what is fair. It is unfair that the father dies leaving nothing to 3 of his children when he clearly wanted to leave them a gift after dieing.

If the OPs father and stepmother both put roughly halve into the house the stepmother sounds like a c##t to suggest that if he dies first she will just leave the whole house to her kids.

If the father had sence he would divorce the c##t now.