We are acting for a very wealthy man who has very definite ideas about what he will say etc in his Will, so persuasion is difficult. All that I have done so far is to make sure he doesn’t die wholly or partially intestate. He’s signed a Will appointing executors and leaving all of his estate in a discretionary trust (letter of wishes under construction) to children or remoter issue and their spouses, at the trustees’ discretion. Mother of two grown up children is long since divorced, apparently provided for and not even considered in discussion so far; more significantly perhaps is the mother of his 6 year old daughter, both of whom live with him in a separate wing in his large house; mother does things for him, rather like a housekeeper, but they do not get on at all. He pays for everything. she was of little or no means when she met him.
Mother is not named in the beneficiary class; nor do the Trustees have a power to add to the beneficiary class. Mother is believed likely to be displeased with being left without provision. Testator just wants to say in his LOW how badly she has treated him and how miserable she’s made his life.
I would welcome comments, from others who have experienced such situations, on which is likely to be the more defendable position on his death; a Will which completely ignores the mother of his young daughter (although the child will be provided for handsomely) with a letter of wishes making it very clear that he does not think the mother should have any benefit (which is the current position), or a LOW, silent, or at least toned down in that connection, with the mother added or eligible to be added as a discretionary object (along with a number of others such as friends etc, for good measure and to accompany her in the list so that she does not stand out as a provision just for appearances’ sake).
It seems to me that, if the testator refuses to mention the child’s mother as a discretionary object, it is better for the Trustees to be in a position to exercise a power first to appoint the mother to the discretionary objects class and then exercise their discretion in her favour in order to settle any claim threatened, rather than to have to go to court, with all that that entails for executors and trustees, to deal with a claim or to settle it etc with third party complications that might bring as well.
I hope that this is worth members’ attention. I would certainly appreciate any reflections on this situation.
A lot of it will come down to how keen he is to avoid a potential 75 Act claim from mother, given that she could easily say he’s financially maintaining her. Whether or not she’s the beneficiary of a discretionary trust I suppose she could still claim, although she may be less likely to do so if she’s included in the list. Will come down to the personalities involved.
Writing a side letter just to explain why a potential beneficiary isn’t included reminds me of Ilott v Mitson, although that case obviously turned very much on its facts, viz. daughter’s parlous financial state.
I have come across this many times. The adviser must not forget that his or her essential role is to take instructions. That said it is entirely in the client’s interests to point out the possible downsides of anything proposed.
Certainly a LoW is the place for the client to sound off and not the Will itself, given the public domain after probate. Clients may relent or reconcile before death and, as it is non-binding, executors could take that into account even if the text of the letter was not changed.
A decision to exclude a power to add the mother of the six year old would be particularly disabling in such event. This does not prevent a 1975 Act application, and the PRs have authority to compromise any such action, but it almost sets up that likelihood. A power to benefit the daughter alone can work against her interests during minority as there may be a doubt whether a given exercise which also benefits the mother can be challenged.
It has become routine for disappointed family members etc to get what they feel they deserve by arguing that the deceased lacked mental capacity. If the argument succeeds the Will is void altogether and intestacy results. Parents, spouses and cohabitants (current and former) are fully entitled, if they have capacity, to make a Will with provisions that others find surprising or disapprove of. The content of a LoW is evidence and unless temperate and rational might be very unhelpful if disclosure is forced.
I suggest that the client be recommended to create a balanced LoW, without changing his intentions if he remains determined, and to consider a power to add. This can be general and not specific to the mother. My clients often disliked the exercise of such a power being entirely at the discretion of the trustees. Those named in the Will might not be the trustees at the relevant time. The requirement for the consent of two beneficiaries (invariably altered to add “adult” to some precedents) was sometimes not persuasive and a more elaborate protection mechanism for consent was sometimes requested (compare Protectors in offshore trusts).