My father died two years ago and my mother and her friend handled his will by themselves. I have never seen it and have been told many times that it is none of my business. My cousin (who is mature and not one to stir) has told me that, a month or so before he died, my father told him that I have a trust fund. My mother denies this and says I haven’t been left anything. I’m not sure how to go about this. She has been acting very oddly and distanced herself from the whole family after my dad’s death. Is my mum being dishonest carrying out the will by herself instead of using a solicitor?
My father was born and raised in England and the will was made here, but my parents weren’t my biological parents and I was adopted from abroad. Is there any way I can find out for certain if I have been left a trust fund?
I’m sorry to hear about your father dying and that this is a time of such distrust and confusion for you.
I consulted Jane Whitfield, chair of the Law Society wills and equity committee (lawsociety.org.uk), and it is with her help and advice that I am answering you.
If a will has been through probate anyone can request a copy of it, for £10. I’ll talk you through how to do this further on.
Probate is the acquisition of an official document that confirms that the person whose will it is has died, that it is their last will and testament and it confirms that the will has been examined. Only the executor of the will can apply for probate and you need probate to “wrap up” a deceased person’s estate – a bank, for example, would insist on seeing an authorised copy of the probate document before it transfers funds.
Occasionally, very small estates won’t need probate (usually anything under about £10,000, but that’s not an official figure, just a guide), but absolutely anything involving property will need probate, because the Land Registry insists on probate before transferring property deeds.
If your father left a trust fund, presumably the will was larger than £10,000 and there will almost certainly be a will. You can easily search for his will online at gov.uk/search-will-probate. All you need is your dad’s name and the year of his death to do a search, and you can then order it online.
So, presuming the will has been through probate and you get a copy, you can see what, if any provision, was made for you. As Whitfield explains: “If there is a trust fund, then the will would include wording such as, ‘I give £X to my trustees to hold upon trust for my son/daughter XX upon her attaining the age of X.’ If the will was professionally drawn up and it contains a trust, there may be more complex wording to set out the terms of the trust and the trustees’ powers in administering the trust fund.”
It will also show you what else he put in his will and whether he left you anything else (just in case your cousin got it wrong and it was a sum of money and not a trust you were left).
“If your mother has acted fraudulently,” says Whitfield, “then you will have a claim against her for breach of trust to recover the funds that should legitimately pass to you under the will.”
At this stage you may want to consult a solicitor who specialises in probate legislation – you can find one on the Law Society website.
If probate wasn’t applied for, and there is a will, then you need to get a court order to get her to hand over a copy of the will. You can do this yourself but I would recommend you contact a solicitor. The cost would be (as a rough guide) about £1,000 to get them to handle the paperwork for the court.
You mention that you were adopted, and this shouldn’t change anything. As Whitfield says, if your adoption is recognised in England (even if it didn’t happen in England and you were not originally from England), then you would be treated just as a birth child should. Anyway, if you are named in your father’s will as a beneficiary, this should still stand.
Get a copy of the will to establish the facts. Then (or if there isn’t a copy available via probate), any reputable lawyer will give you an initial consultation free of charge to let you know what your chances are. If, for example, the sum left is very small, it may be counterproductive getting legal on your mother.
I suppose you may also have to face the fact that your father didn’t get round to putting his intentions for you on paper, and that might be hard for you.
This article first appeared in The Guardian Family section, 18 September 2015.