To explain matters more clearly I think I must give you more detail about the “scheme” (researched from email records). It concerned only the administration of the money I had received from the net sale proceeds of the flat that I bought outright in 1995 (solely in my name). I agreed, in order to comply with the Consent Order, that the money should be placed in two accounts (which we called “A” [my present wife’s eventual inheritance] and “B” [my son’s eventual inheritance]) which would be offset against my son’s mortgage (on his expensive London property). He would then deposit the resultant savings in his monthly mortgage repayments in a third account (“C”). We had hoped initially that all three accounts would be jointly in the names of my son, my present wife and me but, as the Bank could accept only two joint signatories, I agreed (because my son and my present wife were to be my eventual executors) to opt out of the accounts’ “ownership”.
The final form of the scheme my son offered in August 2012 was:
“1. If I survive both you and Mum:-
1.1 If you survive Mum, the whole thing voids on Mum's demise, Ania gets the content of Account A, I get the content of Account B, and the content of Account C is divided 50/50 between us (viewed, simply, as interest accrued proportionally).
1.2 If Mum survives you, Account C is used to supply her stipend. On her [“Mum’s”] demise, Ania gets the content of Account A, I get the content of Account B, and any remaining content of Account C is divided 50/50 between us (ditto). If Account C becomes empty [before “Mum’s” death], I will supplement the effective income from Accounts A and B as required. I undertake to review this situation at Mum's demise and to determine if any of the money in Account A can be released early, should Ania desire it.
2. If you and Mum survive me:-
2.1 Julian [my son’s long-term partner] takes over and administers the accounts as above (he's agreed to that). In the unlikely event that Julian and I both fail to survive you, we'll need an appointee.
3. The one thing we haven't specified is what happens should Ania meet an untimely end before all this has run its course, but after your demise (ie in case 1.2). That ought to be sorted explicitly too, for the benefit of her dependents, if she has any.”
I had been unsure of how the offsetting of my son’s mortgage was to work and also I had asked whether I could withhold some of my money for the various renovations that were in train in our new property. Having received an explanation of how Account “C” would be funded and having accepted that to withhold some of my money might be contrary to the terms of the Consent Order, I gave my agreement to the scheme on 29 August 2012: “OK - scheme agreed/accepted as now understood completely.”
In December 2008 when the “scheme” was being thought about, my son emailed:
“It allows me to promise the following, on account of the interest it saves me: I will take over all payments for Mum, should you predecease her, and Ania can take her half of the proceeds from The Maples [my flat where my present wife and I were still living] immediately, and not have to worry about trust funds or anything. If the converse should happen, we’d immediately divide the money and there’s nothing further to worry about.” I replied about the “converse” clause: “i.e. if Dil departed before me, the original net proceeds from The Maples would still be available and would then immediately be divided equally between you and Ania? - actually this might suit me better than my personally appearing to have “substantial” capital in the event of necessary residential care admission.” With hindsight, this was a stupid argument for me to make - I do not now remember writing it or understand my illogicality at the time. But I did write it.
Coming now to your specific question……
When my former wife died in September 2014 and my son began to dispose of the joint accounts, I genuinely did not remember that my agreement of 29 August 2012 included item 1.1 [above]. Being nearly 80, not surprisingly I frequently experience lapses in short-term and sometimes long-term memory but, in response, my son simply pointed to the agreement I gave.
In August 2012 I had no inkling, though perhaps I should have been more sensible, that my former wife would die before me. Admittedly she had had a breast growth removed in 2010 and a mastectomy in 2011 but my son had reported “the [latter] op went 100% as planned” and had added “As regards ***** *****: statistically, both your heart op [I had a quadruple bypass in 1999] and Mum’s cancer treatment have very good prognosis, there’s no reason to suppose that either of you will be affected again. The key probabilistic determinants of the period that I would expect to have to cover [i.e. operate his “scheme”] are the differences in your respective ages and the difference in life expectancy between men and women [I was 18 months older than my former wife] - his conclusion was that she would survive me by 10 years. He has recently explained that it was the oncologist who had given my former wife a clean bill of health in 2009.
I cannot have given sufficient consideration to 1.1 [in the agreement] in August 2012 before agreeing it but I usually have had to concede that my son’s views generally swayed mine (we parted intellectually when he reached the age of 8 !). Another factor at that time was my eagerness for my Will to be changed as soon as possible so that the Consent Order’s requirement would not “bite” on our new property should I die before amending it - but my son did not have time to consider my draft amendments before my wife’s terminal state became obvious (possibly a year ago) and progressed because he did not wish to worry her over such matters.
As the matter now stands, my son feels that (because of our “agreement”) he is now entitled to a premature inheritance of £50,858 now to ensure that he receives the whole of the money he believes my former wife wished him to have, albeit although she has died first (contrary to all expectations) - even though the implementation of the “scheme” has cost him nothing. To return it to me would indeed probably be the end of any substantial inheritance for him because I now intend to leave everything to my present wife, while in her intended new Will her estate would be shared between my son and her brother. Moreover, despite our continuing efforts, my present wife’s income after me will be considerably less than we have now and it seems very likely that in later life she will need to seek equity release on our property, in which case her eventual estate will be reduced considerably (she is 21 years younger than me and remarkably fit for her age partly through maintaining our garden and a small allotment, with which I am unable to physically to help her, regular jogging and long hikes with the local Ramblers Assn). If my son retains the full amount of Account “B”, my present wife will bequeathe her eventual estate solely to her brother.
Incidentally, my son’s final words to me in an email of 24 December 2014 were: “Do not expect to see me again. So, so disappointed.” In any case I have not seen him for five years and rarely since 1995. All so hurtful to me.
I am not confident (because of my stupid agreements at the time) that I can ever reverse what has happened but your advice would be valued as to whether it might be worth a shot, and, if so, how.