My sister has persuaded my elderly father to cut me out of his will

My older sister has turned up after many years of absence and persuaded our elderly father to change his will, and I write in the sincere hope you can help me and my twin sister.

Our family had a lot of unpleasantness growing up. Our parents married each other three times (to each other) and my three siblings and I went through a lot of physical and mental abuse from both parents in our childhood.

Our mother died in 2006 and my twin sister and I looked after our elderly father for 12 and a half years.

My twin lived 20 minutes away and, although I lived 170 miles away, I visited regularly. My twin did the day to day care and I travelled up and down the country every few weeks.

Our brother visited our father once a year over the last eight or so years but they fell out about two years ago when my brother asked to borrow £10,000. Our brother said it was a gift and my our father said never, it was a loan and they fell out and barely spoke again.

The money was paid back over a period of 12 months. I would like to point out our brother did nothing to help or support our father and didn’t speak to him for many years before he got in touch.

Our older sister fell out with our father the week of our mother’s funeral in 2006 and NEVER helped or spoke or supported him. She NEVER visited, although she lived 15 minutes away. Before our mother’s death, she was always falling out with our parents and stopped her young children visiting them.

Over the years, our father has made five wills. Our father did not include our sister in any of those wills. He left his money equally to my twin sister, my brother and me in four of those wills.

In his last will, and after the fight and fallout with our brother, he left his estate to my twin sister and I in 2018.

At the end of 2018, our older sister turned up to visit our 91-year-old father. Within two weeks she caused trouble between our father and my twin sister and I and was seen going through our father’s personal bank account and personal items.

Our father then told us he wanted nothing more to do with my twin sister and I as we were starting to get sick ourselves and we could no longer help and look after him, and he now needed our older sister.

Our father also told us he had changed his will yet again (within a couple of months of our older sister turning up) and we were not in it.

We are convinced our older sister had persuaded or influenced him to change his will.

As you can imagine, my twin sister and I are deeply hurt and upset by our father and disgusted by our sister’s behaviour. Can you give us any advice on what we can do with regard to our father’s last will? Will it be valid?

I appreciate any advice you can give my twin sister and I. We are good, kind people who have done everything possible to help our father in his old age.

Tanya Jefferies, of This is Money, replies: I am very sorry to hear of your tough family situation, throughout your life.

You and your twin sister have selflessly cared for your father, despite the difficult circumstances of your upbringing, and are understandably distraught now.

People are generally free to make whatever will they want, but there are a few restrictions on this, and some safeguards against wrongdoing.

We asked a lawyer to explain the options open to you, although he warns you should think very carefully about the family strife and financial cost that would ensue from any legal steps.

I hope whatever you decide to do with this information, you and your twin can find some peace.

Gary Rycroft, partner with Joseph A. Jones & Co Solicitors, replies: Wills can be highly provocative for many reasons.

It is not clear from what you say if your concern about the situation with your father is driven by your sense of justice – that is you feel it is wrong for what you believe your father’s true wishes to be changed – or by the emotional trauma of being simply cut out of your parent’s estate, or by the financial reality of not inheriting assets from your parents.

You do not mention the value of your father’s potential estate but for many people (I am not saying you fall into this category because you do not mention it) will disputes arise because of the disappointment of losing an expected financial inheritance.

Also, the cost of taking professional legal advice and bringing a claim means that any that end up in court almost always have a financial aspect as otherwise they would not be worth the financial risk (never mind raw emotion) of entering into a dispute with people who are often close family members.

It is not unusual for someone aged in their 90s to have made a number of wills during his or her lifetime. You say your father has recently made a sixth will.

As a rule of thumb, I say to clients that they should review their wills every five years or so. It may well be that nothing needs to be changed, but life does move on from time to time and sometimes tweaks are appropriate.

In your father’s case, he has changed his will as his life and the nature of his relationships with different people has changed and evolved.

So, on the face of it, there is nothing wrong with your father making a new will, but clearly because of the history of your family and what you perceived to have happened in recent times, you do have concerns which I fully understand. 

What makes a will valid, and can your father’s be challenged?

To make a valid will, a person must be aged over 18 years, have what is known as ‘testamentary capacity’, and ‘full knowledge and approval’ of the will, and also not be under any ‘undue influence’ of any third party.

Here I can see that you have concerns both about the testamentary capacity of your father because of his age and frailty and also more particularly because of the influence of your older sister upon him.

The legal tests for capacity to execute a valid will is based on case law and the leading case remains Banks v Goodfellow which was heard in 1870.

In brief, the person making a will must:

1. Understand the nature of making the will and its effects;

2. Understand the extent of the property which they are disposing of;

3. Be able to comprehend and appreciate the claims to which they ought to give effect;

4. Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by a will.

What this means in plain English is that a person making a will must understand that they are making a will and what the impact of that will be, understand the extent of the property which they own and are able to dispose of, be able to understand who may expect to benefit from their estate and have no physical or mental illness which impairs their cognitive function and ability to make a will.

In England and Wales, we enjoy what is known as ‘testamentary freedom’ which means that the law recognises and upholds the right for people to leave their estate on death how they see fit.

The only restriction is that certain categories of persons, such as spouses and minor children, are entitled to benefit in some way, although in what precise way is not set out in law and very much depends on the circumstances of each case.

So, in the case of your father, his age and frailty does not necessarily stop him from making a new will and he is certainly free to leave his estate as he chooses between his adult children unless there is some compelling reason otherwise.

Such reasons might be financial dependency between him and anyone else, and also any promises that he may have made to anyone about the inheritance which they should receive and for the persons concerned to have acted upon those promises to their detriment.

You do not say that your father has any diagnosis of a dementia type illness or anything else that may impair his brain function so on the face of it he has testamentary capacity.

Please note a diagnosis of dementia would not necessarily mean a person was lacking testamentary capacity; it would just be an issue which warranted further investigation and maybe a formal assessment of capacity before proceeding.

If your father’s new will has been made by a trusted professional such as a solicitor, then they should have been fully aware of the test of capacity and should have recorded his or her satisfaction that your father [met] the test.

If your father’s new will is homemade or has been made by an unqualified person there may be more doubt about its validity.

Did your sister persuade your father to change his will in her favour?

I can see in this case why you might suspect that your father has been subject to what is known as ‘undue influence’ by your older sister.

Signs of undue influence are where a person departs from their previous pattern of wills and makes unexpected changes which are detrimental to people that they have previously been close to.

A further cause for concern may be if the person benefiting from the new will wasn’t previously included in other wills or the person making it was in some way dependent upon the new beneficiary.

So, there are certainly alarm bells with regard to the situation between your father and older sister.

One specific type of undue influence is referred to as ‘fraudulent calumny’ which occurs when a person makes false representations that poison the mind of a person making a will against another person or persons so that they become excluded from the will.

You may suspect that this has happened with your older sister and your father. However, evidence is going to be crucial and by its very nature undue influence and fraudulent calumny often take place behind closed doors.

How might you gather evidence about your father’s latest will?

On a practical level whilst relations are current difficult between you and your father, I would urge you and your twin sister to try to reestablish contact with him and gain his confidence again.

That way, you can find out what (if anything) has been said about you by your older sister and it would be even better if you could get your father to make such statements in front of independent third parties.

The great advantage that you have at the moment is that your father is still alive and so there is still time for him to make another will, subject to everything I said above about testamentary capacity and the like.

There is also still time for you to gain evidence from him about the circumstances of him making the will which you are now unhappy about.

Very often in cases where wills are challenged, the issue is that the key witness, that is the person who made the will, is not there to give evidence, whereas you still have him available to speak to.

Did your father make you and your twin sister any promises?

Another legal principle you should think about is ‘promissory estoppel’.

This is a legal doctrine based on fairness and arises in circumstances where there is a relationship between the parties concerned (in this case your father and you and your twin sister) and a clear and unambiguous promise by one party to benefit the other (in this case if your father promised you and your twin sister that you will inherit) and then the parties who have been made the promise act to their detriment and change their conduct on reliance of the promise.

So in your case, it could be that your father promised you and your twin sister that you would inherit from him on the basis that you cared for him for many years.

Therefore, you provided that care to your detriment in terms of working and earning less, and so the fact that he has now changed his mind about your inheritance would be unfair to you.

The detail you give about what has happened does not at the moment stack up as a case where the principle of promissory estoppel would apply, but you and your twin sister should be aware of it and think through whether or not it applies to you.

If so, you could bring a claim for promissory estoppel both whilst your father is still alive which would be against him or after his death against his estate. 

What should you do now?

As I said at the beginning, all of the possible legal solutions will lead to inevitable conflict between you and other members of your family so you should think very carefully about the emotional impact of that, as well as the financial cost of it before you go any further.

As I say, I really think the fact that your father is still alive is the best aspect of what you have said and if you could build on that and indeed build bridges with him then that would be a fantastic outcome for many reasons.