I have received Will instruction from a client that was abused by her father, but the claim against the police for their historic failures took so long to bring to fruition that the father died before he was prosecuted.
She also has tearaway son who she does not trust.
Understandably, the client now wants a clause in her own Will that says if ‘anyone is arrested (not convicted) of a ‘serious’ offence they are deemed to have pre-deceased, and therefore not inherit from her estate.
There are practical difficulties relating to the executor’s knowledge, their entitlement to such knowkedge and timings.
As an alternative to this request, a discretionary trust and a letter of wishes is being considered.
Has anyone encountered anything like this before and able to share any advice on how to approach something like this?
I had a very similar client: wanted to leave his estate to his young adult children equally, but if any of them were convicted of a felony he wanted them to get half of what they would have done, with the other half being split between the other children. Leaving aside that “felony” is an American term, that still has the same problems as your situation.
In the end I recommended either a discretionary trust or a flexible life interest for wife (not children’s mother) with remainder to children, with power to appoint capital to remaindermen during life tenant’s life (he wants to ensure the children don’t have to wait for second death in order to benefit).
In your situation, I reckon probably a discretionary trust, or potentially a life interest for tearaway son with power to appoint capital to him if he does turn a corner. Ultimately it comes down to whether the testatrix wants the son to be entitled to anything even if convicted of an indictable offence.
It’s a minor point but “felony” is an English law term, which fell into disuse in England and Wales following the passing of the Criminal Law Act 1967 which abolished the distinction between a felony and a misdemeanour. Like so much else it was imported into the law of most US jurisdictions and there remains in use.