How can I avoid bequeathing my children a family broiges?

By Jonathan Goldberg, October 4, 2012
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Hetty from Edgware writes:
I am a pensioner aged 83, and I live alone with a part-time helper. My late husband who died last year always took good care of our finances. In truth I had very little knowledge or understanding of them previously. He left me with the house which I think is worth over a million pounds, and more than a million pounds in income-producing stocks and bonds.

I have three children who are all very good to their mother in their different ways. They each do their very best to visit me frequently and to make my life more pleasant. Each has their own children, so I have 10 lovely grandchildren.

However I cannot hide from myself that each of my children is very different in personality and needs. My eldest son is 61 and he is by far the cleverest. He has made a lot of money in business. He now looks after my affairs and I trust him totally. He has been very generous over the years to my husband and myself, but also to his younger sister and brother. In one sense he has given so much to my late husband and I materially, that he should have the best claim of the three after my death.

Life has not been kind to my daughter unfortunately. She is 58 and was recently divorced after a long and unhappy marriage to a gambler who lost all their money. She has a part-time job and works hard but she now lives in a rented flat and struggles to make ends meet. Her children are off her hands at least.

My youngest son is 45. He is only an employee, and will never be as successful as his elder brother, and he has large school fees to pay.

I now intend to make a will for the first time in my life. I feel in a terrible dilemma what to do, and have no one with whom to discuss it confidentially. Shall I divide my estate unequally according to their needs, and thus risk creating resentment after I have passed away, or shall I simply divide it equally between the three of them? I would very much welcome your thoughts.

Hetty, let me first reassure you that yours is a dilemma which must confront very many loving parents. From the strictly legal point of view, inheritance is one of the few areas where the citizen is still free to do with his money exactly as he or she sees fit, be it to the children or the cats’ home.

Sibling rivalry is always a delicate area even in the happiest of families. I have known cases where this situation has erupted into open warfare after death. Let me make a few tentative suggestions. You might consider placing your house in trust for your daughter, on the basis she can live in it rent-free for life, unless and until she remarries or moves to new accommodation; thereafter to be sold and divided equally between all three. This will place a roof over her head and save her rent.

The liquid assets forming the residue of your estate could likewise be placed in trust for a set period, for example until the children of your youngest son are grown-up, with the income being divided between him and your daughter only in that period, but the capital being divided equally among the three siblings thereafter.
You can write words in the will to explain your decisions, referring to your equal love and appreciation for all your children, but your recognition of their different financial needs.

You may also think it makes sense to leave the share of your rich son to his children, rather than to him directly. However since you are blessed with three children, and nothing you have said suggests they are not equally worthy and sensible people, could you not simply sit down with them all to discuss your dilemma frankly?

Alternatively, you should at least explain to your eldest son why you are minded to treat him differently. You may find he agrees wholeheartedly, and that he himself suggests the fairest way to do it from his point of view.

Remember that if you were to die without making a will, your estate will be divided equally amongst your children on intestacy. And you definitely need to use a solicitor. Homemade wills often fail because the formalities which are requisite before a will is valid in law are highly technical. Your bank can easily arrange this for you.

The above is not formal legal advice and is given without liability. Jonathan Goldberg QC is a leading London barrister. Visit www.GoldbergQC.com

Last updated: 2:38pm, January 4 2013