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Inheritance v divorce

  • Intrepid82
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24 Mar 12 #319877 by Intrepid82
Topic started by Intrepid82
Gone thru Decree Nisi. However , my Dad is terminally ill, just weeks left.

I might not be through the Decree Absolute by the time he goes. If I inherit, I am his beneficiary etc, would my ex have a claim on it, or does the fact that I am quite a way through the divorce process (I am the Respondent) stop her from getting her hands on it?. You can appreciate that inheriting a house etc would make quite a differance to the "pot". Thanks. PS he has a Will.

  • soulruler
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25 Mar 12 #319956 by soulruler
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Hi I have been thinking about your problem overnight and considering whether I should post an answer. Anyway, here is it:

A Will of a person is in the public domain so your spouse and her legal team can access that will.

If you are tobecome a beneficiary often (unless your father thought you spendthrift and unreliable) the beneficiaries in families are also made the trustees.

As a trustee of a will (and usually they are appointed without an income unless they are a qualified and independent trustee and certain criteria and law applies ) you are personally liable for ensuring that the details of the benefits of the will are executed in accordance with the deceased.

A family lawyer or a person not mentioned as a beneficiary or trustee of a will does not in law have the right to attempt to put undue pressure on a trustee or to harrass the writer of the will.

IF a third party suspects that the person writing the will was of unsound mind at the point they wrote the will or was themselves put under undue influence by a beneficiary to write the will then they should point this out and potentially would contest the will.

I believe that you should take urgent and competent legal advise from an independent legal expert in wills and trusts.

Also google and look up trusts and trustee obligations.

In the family law book I have it confirms that were parties are going through a divorce they need to update their own will or get one written.

In this regard I think you should at this point go and see a trust lawyer to make sure you have an up-to-date and valid will.

You should at this point in my belief do everything you can to get this to an early resolution. Having to cope with the trauma of a parents death whilst also going through a potentially contentious divorce is not easy (I fully understand that personally).

You will know your circumstance the best. Have you benefited from a large inheritance from your wifes family? Can you under the circumstance offer your wife a larger portion of the marital assets or take on a larger portion of the marital debts in order for you both to come out of this (and any children you may have) in a decent financial situation?

At this point if you are railroaded into accepting a potential claim and if you are a trustee you are liable, so make sure as far as you can you are sure of your liabilities and your rights.

There is an excellent post of a recent judgment which Maggie has put on here regarding precedent.

You would have to be insane to go and get trust advice from a family lawyer as they specialise in divorce proceedings, ancilliary relief, children acts, non molestation orders, domestic violence, adoption and artificial insemination.

Due diligence and good luck.

  • Fiona
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25 Mar 12 #319962 by Fiona
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I''m very sorry to hear your father is terminally ill. I agree with soulruler you need specialist legal advice sooner rather than later, although I would recommend seeing a family specialist to find out where you stand and what options there are in your particular circumstances. Trying to avoid a spouse''s claim to financial relief can make matters unnecessarily complicated and increase legal costs significantly.

Inheritances and future inheritances need to be disclosed. If the needs of both parties can be met from the other assets an inheritance might be allotted back to the beneficiary of the will, particularly if the inheritance has been kept separate from the family finances and was recent.

Future inheritances are usually only considered if they are certain, such as a trust. Potential inheritances may not materialize if the benefactor changes their will, uses the money for care in old age etc and aren''t taken into account. However, there have been circumstances when a benefactor is in ill health and a court has adjourned a hearing for a financial order settling the finances on divorce until after their death.

  • Intrepid82
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26 Mar 12 #320105 by Intrepid82
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Hi . Thanks for your advices.

Do you think the court would be able to distinguish between my assets ref the what was declared on my original estate, and my new addition which i would inherit whilst the proceedings are at an advanced stage?.

Any single father would want his two children to benefit in a will, but in this case, it could be that the will or proceeds of it would end up with his ex daughter in law. Not what he intended.

Would it be oki to put to my solicitor that I would accept a lower amount off my ex, say 70/30 in her favour from the matital estate, if I kept my inheritance intact as it was intended.

My ex issued proceedings against me 15 months ago, we are due in court in June, due to me having to issue court papers to her as she was not replying to routine papers. (I am the Respondent).

So you can see that her deliberate delay in pushing the divorce has ended up with a death of my relative perhaps 18 months on, being brought into the equation. Ahhhhh!

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26 Mar 12 #320129 by cookie2
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Intrepid82 wrote:

the will or proceeds of it would end up with his ex daughter in law. Not what he intended.

Sorry to sound harsh but this is not really relevant. Your father''s wishes do not come under the jurisdiction of the court dealing with your divorce. The fact is that if you have assets then the court may award it to either of you, no matter what the source of that asset was. But just because they can, does not mean they will. It all depends on the figures.

Would it be oki to put to my solicitor that I would accept a lower amount off my ex, say 70/30 in her favour from the matital estate, if I kept my inheritance intact as it was intended.

Yes, this is totally acceptable. Whether your ex accepts it or not, however, is up to her. I suspect her answer would very much depend on the figures.

Also bear in mind that a court will very rarely take future inheritances into consideration. So if you can get it all wrapped up while your father is still alive, then it will probably be a much better outcome for you.

  • Intrepid82
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26 Mar 12 #320134 by Intrepid82
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Thanks for advice etc. It does help. i am much in the lap of the Gods it seems, or the Judge..

Anyway, :dry:anyway, i would risk going in lower with my marital address and thus a lower % , but its a big risk, as I fear my ex will just grab what she can. "Take him for every penny" her friends would advise.

I have a very strong sense of what is in the will, and if my ex takes what she may be entitled too, then she will end up with more out of the Will than say my sister, as I would have to send my ex up to 60% maybe. Its perverse.

this is the real reason for me posting this thread, as I wondered if a Court/judge would see this viewpoint. Enough is enough i would say, but not her....:S

  • esox11
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26 Mar 12 #320156 by esox11
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Isnt it awful that someones dying wishes are over ruled by the divorce courts.

The inhertance issue in divorce does seem perverse to me. How can she claim against your fathers will but you not have any share in anything she is left in the future.

My own story is similar.

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