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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9318
Experience:  I have been practising for 30 years.
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My partner has died and I am being told that s old son is

Resolved Question:

my partner has died and I am being told that his old son is next of kin but he is only 9. I have got the will and his olderst son is not in it because his name is ***** ***** the birth cerf. I am getting grief of the grandparent saying that lewis is his next of kin x
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

Is there any dispute that the nine-year-old child is the child of your late partner?

Who was named as the executor in the will and what are the provisions in the will?

Background detail would be really useful please

Customer: replied 1 year ago.
no he is not named in the will. my partner put mrs Kerry bassett as the executor and every thing is to go to his son dominic Malcolm and ruby Malcolm these are his other children that lived with him .
Expert:  F E Smith replied 1 year ago.

Does it say my children, or does it say my children Malcolm and Ruby?

Any mention of other issue or unborn children?

Are you Kerry?

Will Malcolm and Ruby agree to split their 50-50 down to 33-33-33?

Customer: replied 1 year ago.
I am Kerry . it say to dominic and ruby but nothing about lewis which is the oldest child that lives in hastings .
Customer: replied 1 year ago.
I cant afford to pay another £38 to talk to u
Customer: replied 1 year ago.
the background information is that we only found out lewis 4 years ago because the court asked for a dna test to be done on my partner because lewis is not allowed to live with his mother. he lives with the grand parents and it is the grand parent is trying to tell me that lewis is next of kin and that they he is in titled to have some of my partners money but there is no money to have. dose it make anything that my partners name isn't on lewis birth cerfication. I just need to know where I stand it is making me ill . thinking they can come in and take over what is happening?
Expert:  F E Smith replied 1 year ago.

You only pay one fee for the whole exchange between us.

It is the wording of the will which is important.

If it says words such as “I leave everything to my children” it includes illegitimate children and adopted children. It also includes any children who were born at the time of writing the will.

Not being named on the birth certificate is not relevant. The age of the child is irrelevant.

If it says words such as “I leave everything to my children Fred and Tom”, then all the children are excluded.

Another child may have a claim under the Inheritance (Provision for Family and Dependents) Act which would have to be brought by a parent or other interested party as a Litigation Friend because a nine-year-old is not capable of conducting legal proceedings.

If you are the executor, they cannot take over anything. You are appointed in the will and provided you go along with the wishes in the will, you cannot be criticised. If they are now harassing you over this, call the police because they either have to go to see solicitors and deal with it legally through the courts or leave you alone.

It is worth saying that if this was taken to court on behalf of the nine-year-old child, the nine-year-old child is likely to get something under the Inheritance Act because the father has failed to make adequate provisions for that child. Further, it’s likely to cost quite a lot of money in legal proceedings if it’s defended. It would be in the other 2 beneficiaries best interest to come to an arrangement with the grandparents acting on behalf of nine-year-old whereby the nine-year-old gets something. You are not able to take that decision because the money has been left to the other two children. That decision must be taken by them. My advice to them would be to really consider splitting it three ways and certainly don’t try to defend any claim under the Inheritance Act.

Customer: replied 1 year ago.
the other 2 children are only 9 and 22months old so it would be down to me then as I am they mum
Expert:  F E Smith replied 1 year ago.

It would be down to you.

Although it’s not strictly what the will says, I don’t think anyone could criticise you for dividing whatever has been left to the children in 3 ways. If the nine-year-old grandparents took this to court, the chances are that they would win and the court costs would be substantial so it really isn’t worth defending when it’s quite clear that he is a child of your late partner. Of course, we are assuming that is not in dispute.

If you wanted to be strictly correct about this, you would make an application to court for a determination that what you are doing is correct and in that way, if the court orders i, you are in the clear.

My suggestion would be to agree with the grandparents that the children share will be split 3 ways and not 2 ways. Tell them that the will is quite clear and that the nine-year-old child is not mentioned. You can understand where they’re coming from but strictly speaking it all goes to the two named children. Therefore, you are concerned that the 2 named children may take issue with this in later life because you didn’t comply with the terms of the will. Hence, you don’t feel able to take the decision on behalf of two minor children and you propose to apply to court for the court to make the decision for you but you would support a three-way split rather than a two-way split. However there is obviously going to be a legal costs for that and provided they are happy for that cost to come out of their grandson share, that’s what you would propose to do.

The grandparents are going to take more notice if that letter comes from a solicitor and that will also relieve you of the pressure because once you have instructed solicitors, or correspondence should go through the solicitor. Expect the court application to cost about £3000 or thereabouts. It’s not going to be horrendously expensive because presumably no-one is going to defend it.

Can I clarify anything else for you?

Please do not forget to rate the service positive. It’s an important part of the process by which we experts get paid. No rating equals no money!

Best wishes.

FES.

F E Smith and other Law Specialists are ready to help you
Customer: replied 1 year ago.
if there was money I would give lewis some money but I would put it in a trust fund until he was 18 . the same as the other 2 . thankyou for all your support that has help that has asked my question Kerry bassett
Expert:  F E Smith replied 1 year ago.

My suggestion would be to give the money to the grandparents to put in trust so that you are absolved of any liabilities that respect. You don’t want it hanging over you and you don’t want the grandparents making allegations. What you would do, is that you would get the grandparents to sign an indemnity form whereby they absolve you of all liability in respect of the money and if they do a runner with it, the grandchild comes to them not you.