Can we use my late mother’s ‘homemade’ will?

Since my mother died we have found multiple copies of her will at her home, all saying different things and all homemade. She made an official will through a solicitor 20 years ago which now seems out of date. Can we use the most up-to-date “homemade” will instead?

Jeremy Curtis, partner and head of London family business at Cripps, says the good or bad news here is that you don’t have a choice. You must use (or more accurately “prove”) the most recent, irrespective of who prepared it.

This presupposes that it is valid, that is to say dated and signed in the presence of two adult witnesses of sound mind.

It is possible you might have to prove an earlier will or wills as well. Usually a will contains the phrase “I revoke all previous wills and testamentary dispositions made by me” or words to that effect. Those words wipe out any wishes expressed in any earlier will, in effect invalidating that earlier will. If those words are missing the later will is still valid, but so are the provisions in any previous valid wills. That has the potential to create conflicting wishes and if that happens it is the most recent that is assumed to be right.

For example, Will 1 leaves everything to my daughter, Will 2 leaves my stamp collection to my son and is silent on everything else. If Will 2 contains no revocation then both wills have to be proved, and son gets the stamps and daughter everything else. Otherwise, only Will 2 is proved, son gets the stamps and everything else passes under an intestacy — that might be to son and daughter equally.

It is also important that your mother was of sound mind at the time she made her will. If she was not then the will in question will not be valid. This is a difficult and often contentious issue, and is not something that can be judged from the face of the will.

It will require evidence of your mother’s state of mind at the time the will was made. It is recognised that capacity fluctuates so it is possible to lack capacity at the time of one will but to have capacity when making a later one.

There are other related grounds on which a seemingly valid will can be found to be invalid. Undue influence (making a will recording wishes distorted by pressure from someone else, or want of knowledge and approval), not fully appreciating the effect of the will or the extent of your assets and those you might be expected to benefit.

But ignoring these, if the most recent will is valid, and revokes all previous wills, then that is the only one that can be proved, even if some think it is not what your mother wished.

Finally, if all who are affected agree, you can together vary the last will to create a distribution that meets with your combined approval even if it might not have met with your mother’s.

Can I sue my ex because he won’t raise maintenance payments?

My utility bills have almost doubled and I can no longer afford to pay them with the maintenance my husband gives me. On top of this, the children’s school fees have risen. I have a job, but I took a career break to have children and am on a lower salary than my ex. My former husband says he is struggling himself and is unwilling to increase maintenance payments. Can I sue him for more money?

Harriet Errington, partner at Boodle Hatfield, says as the cost of living continues to rise, an increasing number of people are struggling to meet their outgoings. For those who rely on maintenance payments from their former spouse, it may be tempting to seek an increase in the monthly payments. This can be difficult — though by no means impossible — to achieve. However, it is not without risk.

It is important to remember that spousal maintenance is distinct and separate from child maintenance. If your ex-husband earns less than £156,000 per year (gross) you can apply to the Child Maintenance Service (CMS) for an assessment. Any new assessment made by the CMS will then override any child maintenance provision in the order. This might be a way to increase your monthly income without the expense of further litigation.

In the absence of an agreement in relation to increased spousal maintenance payments, you would have to make an application to court to revisit this aspect of your order. To succeed, you would need to show there has been a “material” change in circumstances.

Put plainly, you are not permitted a second bite of the cherry. The focus is generally on how your circumstances, or those of your ex-husband, have altered since the original order was made.

For example, the fact that you took a career break to have children will, presumably, have been factored into your original settlement and is therefore unlikely to be as relevant a consideration on an application to vary your maintenance.

The court will expect both of you to disclose full details of your current income and outgoings when determining whether an increase in maintenance is appropriate and, crucially, whether it is affordable for your ex-husband.

If you are able to prove that there have been fundamental changes to your needs and your ex-husband’s income has increased (contrary to his assertion that he too is struggling) then you will stand a better chance of achieving an increase in your maintenance.

However, herein lies a risk. If your ex-husband’s income has not increased and if he is able to persuade a court that he is also struggling to meet the maintenance payments on top of his own increased costs, you may find it difficult to achieve an upwards variation. Furthermore, he might attempt to reduce or — worse — terminate his payments altogether.

You should also be aware that the unsuccessful party may be ordered to pay the other party’s legal costs at the end of the case.

If your original court order included an obligation on your ex-husband to pay the children’s school fees, that obligation would not normally be capped, so your ex-husband will be obliged to continue to meet these in full, irrespective of any increase. In the event that he fails to do so, you would have to apply to the family court to enforce the order.

There is always a lot to consider in situations like this and the answer is rarely straightforward. Before making any key decisions, it is prudent to get your financial ducks in a row and prepare an accurate schedule of your outgoings to assess the monthly deficit.

Where possible, you should also try to gather information regarding your husband’s financial circumstances, for example using LinkedIn and other public resources. Then, at this point, it is worth seeking some legal advice from a specialist family lawyer so that you can weigh up whether a return to court is appropriate.

The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.