A will with a nasty smell
"My father-in-law has just changed his will to leave everything, including his house, to my wife’s sister. We are convinced she put pressure on him to do this, as he is old and vulnerable to suggestion.
"My sister-in-law arranged for the solicitor to come to his house and was present during the signing, but she didn’t mention any of this to her two other siblings. Is there anything we can do to sort out this abuse of family assets?"
Ask the Professionals: Charles Hutton, a partner at Speechly Bircham specialising in inheritance tax planning, says:
As your father-in-law is still alive, there is no legal challenge you can make to his will – and he may change his will again before he dies. The starting point may be for your wife to speak to her father to try and assess whether he knew what he was doing when he made this will and whether he did so of his own volition.
If your father-in-law dies without changing his will and your wife remains concerned about whether it represents his wishes, you may be able to challenge it by showing that your wife’s sister exerted ‘undue influence’ on her father when he made the will, or that he lacked the capacity to make it.
However, the test for ‘undue influence’ is a difficult one to satisfy. While there may be a very bad smell about the circumstances in which he made the will, this would not be enough to prove that your sister-in-law unduly influenced her father.
The fact that your sister-in-law arranged for a solicitor to see her father would not in itself prove undue influence. In fact, if a solicitor was present and acted properly, establishing that your father-in-law knew what he was doing and was acting of his own free will (and made file notes to that effect), it may be much more difficult to challenge the will.
If the will remains in place on your father-in-law’s death, it would be advisable to obtain a copy of the solicitor’s file so that you can establish the circumstances in which he made the will.
Alternatively, if you were able to gather sufficient evidence, you could seek to prove that your father-in-law lacked ‘testamentary capacity’ at the time he made the will. However, you would need clear evidence that he did not have capacity at the time.
This would typically be medical evidence from his doctor. A review of the solicitor’s file should also shed light on this matter.
The tax levied on the total value of your estate after you die. IHT has to be paid by the beneficiaries of your estate before they can receive any of the money from it. The money can’t be taken from the value of the estate _– it has to be paid before any money can be released. There is an IHT threshold – known as the “nil-rate band” – below which no tax is levied (£325,000 in 2011/12). Any amount above the nil-rate band is subject to tax at 40%. If your estate totals £600,000, there is no tax on the first £325,000; however your estate will pay 40% tax on the remaining £275,000, a total of £110,000. Prudent tax planning can reduce your IHT liability, so always consult a specialist solicitor.