Contesting a Will

 

If I start to contest a Will under the inheritance family provision act but there are two other beneficiaries who I thnk would also be entitled can these people be added to the claim at a later date? I cant contact them at the moment.

Lou

 

Make sure you have fairly

Make sure you have fairly deep pockets, it's an expensive business.

>voice of experience<

  I'm hoping that if we fight

 

I'm hoping that if we fight it together three agains one that we can share the costs.

Do you have experience of this and how much did it cost?

Lusia

Profile: stressed, semi retired person

I contested my late fathers

I contested my late fathers will, we were told the best result would be to settle before it went to court which is what happened in the end,his estate was split 50/50 with myself and the person who originally inherited 100%. I don't have exact figures but at a guess I'd say we spent between £10 and £15,000, split between our solicitor and later on in the case a barrister. The costs also included work done before my father died too, the case moved on after his death to an inheritance claim.

  Thank you so much for

 

Thank you so much for replying, hearing someone elses experience is very useful

I am hoping like you to settle before going to court

My situation is a unexpected vast change to two previous Wills with no rime or reason as to why the person would make the changes, I must challange this! I feel so strongly that there were out side influences but proving it will be another matter

Lusia

Profile: stressed, semi retired person

If you want to make a claim

If you want to make a claim you better be awae of time limits - 6 months after probate.

Others can join if they choose to but the timelimit applies so you should not delay your claim.

You should also enter a caveat.

The previous advice on settling is usually the best outcome in the end.

Profile: retired barrister legal adviser with MOJ.

Thank you David for your

Thank you David for your input

I have entered a Caveat and will be instucting a solicitor to challange this on various grounds including the inheritance act

Lusia

Profile: stressed, semi retired person

I'm not a lawyer but you need

I'm not a lawyer but you need to show a need for support, or something like that, you have to lay out your own financial situation in considerable detail, it's a very time consuming process and if you've been left in the financial lurch, as we were, a very stressful and drawn out process.It's not just a matter of saying " I don't like that provision". It took us about 18 months to settle and probably took a few years off our life.

  I realize its going to be a

 

I realize its going to be a long process and the stress is going to be immense,  I will take it one step at a time thats all anyone can do

Thanks again for your input much appreciated

 

Lusia

Profile: stressed, semi retired person

Larke v Nugus

 

What would be a reasonable amount of time to expect a reply to a Larke v Nugus letter, request for information

 

Lusia

Profile: stressed, semi retired person

possibly up to 28 days if it

possibly up to 28 days if it has been archived.

Profile: retired barrister legal adviser with MOJ.

Thank you David

Thank you David

Lusia

Profile: stressed, semi retired person

Caveat in place

There is a caveat in place on a Will that is being challanged, can the deceased persons house be put up for sale while the caveat is still valid?

Lusia

Profile: stressed, semi retired person

You've never really given

You've never really given much detail about what is going on .

But I've inferred there is a will which leaves a property to a third party who I shall call X.

Presumably you are challenging the will and have entered the caveat.

The effect of the caveat is to stop probate - so X will have to wait.

So the position is that the executor won't be able to transfer the property to any new owner whilst the caveat remains.

Its ok to advertise it for sale - but that's as far as it gets.

There's nothing to stop you telling the estate agent the house can't be sold just yet.

 

Profile: retired barrister legal adviser with MOJ.

Five months on

I'll try to condense this if I can

Reply to Larke v Nugus, Solicitor followed all the rules nothing I can fault there really, they insisted on seeing the deceased on their own when it came to the signing but the deceased hadn’t received the draft Will before the signing day but read through their copy it in front of the solicitor! The GP witnessed the signing but didn’t carry out a mental capacity assessment but they knew them well.

in the attendance notes its saying that the deceased said they didn’t really see me often and that is why the deceased had changed what they was to leave me, but I was visiting every two - three weeks with shopping and if anything else that was needed and whenever they ask me for help, so I believe that the decease's memory was failing.

I requested medical records/carers notes six weeks ago and have now had a reply from another solicitor representing the main beneficiary with quite a threatening tone, ignoring my request and saying that I have no grounds to hold up the administration and to remove my Caveat or they will put everything before a judge and I will be responsible for that cost.

I thought that until I had at least had all the information that I have requested they would not be able to threaten me like this?

 

Any thoughts would be appreciated    

 

Lusia

Profile: stressed, semi retired person

You are entitled to

You are entitled to reasonable disclosure in terms of the information you require to make a decision.

I assume the information needed is relevant. So just say to the solicitor that you have asked for information and expect to get it and when you have you will make a decision.

 

Profile: retired barrister legal adviser with MOJ.

  Thank you for replying   I

 

Thank you for replying

 

I suspect that there was a certain amount of influence but cannot prove it and it has to be overbearing influence for it to count.

I have asked for the medical/carers notes because if the deceased was saying that I "didn’t visit regularly" and "we were not close" I believe that they must have had capacity issues, it should be that a person making a Will should be of sound mind and (memory) so if they can’t remember who was regularly visiting them how can they decide who to leave what to! But this solicitor is trying to ignore this issue and use bullying tactics saying that I have no grounds to delay the administration of the estate and that if I don’t remove my caveat he will ask the court to do so, I feel out of my depth and don’t like the sound of court even before I have all the information.

 

Lusia

Profile: stressed, semi retired person

look at it like this - if

look at it like this - if there was nothing to hide why the reluctance

Profile: retired barrister legal adviser with MOJ.

Thank you David Wise words as

Thank you David

Wise words as usual

Lusia

Profile: stressed, semi retired person

medical notes

Hi David

After waiting 8 weeks+ and sending chaser letters to the other side they have not requested or obtained the medical notes, they are saying that it is a unreasnable request and if i do not remove my Caveat and persist with this inquiry they reserve the right to bring this to the attention of the courts and would seek me to pay the cost of approx £2000 if nothing is found.

Is it possibly to obtain a deceased persons medical noted myself? i am a named beneficary.

Lusia

Profile: stressed, semi retired person

I doubt it - but no harm in

I doubt it - but no harm in asking.

I'm surprised at the reply - as there's a requirement to meet reasonable requests with a view to resolving the issue.

I can't see how it can be seen as unreasonable.

 

Profile: retired barrister legal adviser with MOJ.

David Do you think

David

Do you think if this went before the court they would see it the other way round that the other side should pay the cost as it is them that is causing the delay?

I have concerns about the deceased persons memory so need to see the medical notes, i think they are just trying it on and trying to scare me off with the threat of costs.

Lusia

Profile: stressed, semi retired person

It's difficult to advise in

It's difficult to advise in such fine detail. AndI don't likesecond guessing what a judge might do. I don't have access to all the paperwork and information.

As to the other two beneficiaries - why can't they decide now.

Firstly they will face time limits - but these only start after probate is granted - which will not be until you case is dealt with

But if they have a claim and want to pursue it - it would be lot cheaper to do it together.

And if they try to get added after the case has started its doubt full if a court would allow it - certainly not if a final hearing had started.

 

Profile: retired barrister legal adviser with MOJ.

I'm going it alone

The other two beneficiaries are not joining the fight

I'm trying to prove that the deceased should not have made a Will if they could not remember who was visiting and was around alot at the time, they were confused enough to not know my name and didnt know what season it was they couldnt remember who had bought a tin of chocolates but could reminisce about their earlier life as a lot of elderly people can, a bit like on repeat. But apparently they could make major changes to their Will.

I need the medical notes as i believe there will be a record of their confusion contained in them, i have been asking for the notes for months, just dont know what to do know?

Lusia

Profile: stressed, semi retired person

The only thing I can say is

The only thing I can say is this.

If you can find someone else who thinks the deceased was not competent - and that person is/was not a beneficiary and knew the deceased well - then you have a chance.

The fact that two other beneficiaries are not taking action is suggestive.

And of course cost must be an issue. Risk v rewards.

Have you considered the outcome if you were successful. Would you be better off under intestacy.

 

Profile: retired barrister legal adviser with MOJ.

The person was house bound

The person was house bound for over a year the only other contact they had was with carers but not at the time the Will was made and occasional contact with a neighbor

One of the other beneficiaries has since died and the other one is scared of her own shadow

There is a old Will which i would be better off under, if I can prove this new Will to be void

 

 

Lusia

Profile: stressed, semi retired person

As mentioned earlier, I

As mentioned upthread, I sucessfully contested my late fathers will. At the time we believed he was suffering from dementia and his social worker, who was an experienced mental health professional, and a police officer who visited him to investigate his claims that we had stolen his paintings ( not true!), both told us they believed he had dementia, but the opinion of our barrister and solicitor was that, unless we had such a diagnosis from his doctor, it was no use to our case, and in fact we were unable to use those opinions in our pursuit of the case.

 

I remember speaking to their

I remember speaking to their GP when I had concerns about their vulnerability/confusion, the GP made light of it and said that "well some days they seem confused but others they are really quite on the ball" I asked if they had had a mental capacity assessment they said they hadn't!

I have a recording where I'm asking general questions about the New Will they couldn't recall if I was still to be executor or whether I would be on a New LPA that was being applied for by the other person!

Did you get medical records? Is it possible to get these myself as I'm getting fed up with being given the run around by the other side.

Lusia

Profile: stressed, semi retired person

Cost notice

The other side are now saying that they will make a joint request for the medical notes from the GP, but if nothing comes from it I will be responsable for all the costs including theirs, possibly amounting to £2000+, is this normal practice? I think that medical records are supplied at the cost of £50 but of course there is the cost of them writting back and forth and the GP's fee's.

Is a costs notice put before a court? Or is it something that is agreed between the two parties? is there a upper limit for such a costs notice, what would I be signing up for? Could it be endless costs? Who keeps a check on these costs?

I am extremely worried about this, feel out of my depth

Lusia

Profile: stressed, semi retired person

There's a strong argument for

There's a strong argument for saying these costs should come out of the estate. See Kostic v Chaplin 2007. So don't agree to pay.

You are in control as without your withdrawal probate cannot proceed. And if there are reasonable grounds of doubt raised a court will want to be satisfied the testator had capacity. The solicitor representing the estate knows this. And it seems you have successfully called his bluff. That's why they've changed tack.

There's no guarantee - but the courts tend to show some sympathy in cases where the challenge is based on confusion caused by the will itself.

Or if there are ( as in your case) surrounding circumstances which make it reasonable to investigate.

But if the medical evidence suggests the testator was of sound mind - you better drop it at that point - as costs from then are likely to fall your way.

And there's no way a simple medical report still less existing notes cost £2k or more. More like £200.

Profile: retired barrister legal adviser with MOJ.

useless solicitor

 

Hi David

Another month on and still no medical notes!

The other side are taking a more cautious approach but they have pointed out that my solicitor could have requested the medical notes under the access to health records act 1990 herself a long time ago, which has annoyed me greatly and cost me a great deal more in unnecessary correspondence, surly my solicitor should be aware of these things?  I am now considering changing solicitors, do you think it is advisable half way through? I just don’t think she is paying much attention to my case but dosn't mind billing me though!!

 

Lusia

Profile: stressed, semi retired person

Not something I'd care to

Not something I'd care to advise on so specifically.

It would mean seriously incresing costs as new solicitor would have to start reading everything.

Profile: retired barrister legal adviser with MOJ.

Medical records

 

Hi David

 

Medical records now received and there are entries of confusion/hallucinations and memory loss going back at least a year and a half before the Will was changed, but the only entry on the day of signing is BP check a chat about pacmaker then it says signature witnessed.

How is it ever going to be possible to show what capacity a person has on the days that count, when they gave instruction and signed.

How much does a person have to have had these episodes for to be relevant to show that they may have lacked capacity, do you think?

 

 

Lusia

Profile: stressed, semi retired person

Reply

I am in the middle of something very similar myself. I am not a legal expert but an executor and friend of someone who died and left everything to one nephew. Another nephew is in a similar position to you- although he did not stop probate and the estate was distributed. He has now said he intends to challenge the will although a letter we sent appears to have made him think again.

Anyway, from the advice I had on here and the legal and medical advice I have had since, I would think that if a solicitor followed all of the proper procedures and the GP has recorded a visit on the day and that he/she witnessed the will, you will find it very difficult to prove that at the time the will was made the person did not have capacity.

The solicitor and the GP have a professional responsibility to not take instruction for/act as witness to a will unless they are certain a person has the capacity, at the point, to the required standards to make a will.

Capacity is a fluctuating thing in the earlier stages of these illnesses. Someone can lack capacity one day but have it the next over a period of several years. If the medical professional and solicitor on the day felt the person had capacity and followed procedures, I think you are unlikely to challenge successfully as any medical assessment of the file will now be done after death and their assessment was done at that time.

A formal medical assessment of capacity eg a written report is not actually required at the time.

It is a difficult situation to be in and David will have all of the legal knowledge but I just thought I would respond.

 

Further Points

I thought I would also add some further points made to us by a solicitor this week.

The deceased can leave their estate to whoever they choose to leave it to. A court will support their decision unless  a challenge has strong evidence from professionals if that challenge is mental capacity.

I don’t know what your relationship is to the deceased but in our case we were told that nephews can really have no legal expectation of inheriting anything if a will exists.

Someone can be forgetful or confused at times but still have capacity at the point they made the will.

Trying to say what they were thinking is pointless- anyone who does so is just guessing. The strongest evidence is from the solicitor’s file and witness. You say the GP was the witness and knew the person well. The will was a valid will it seems. The person recorded their reason for changing their decision in a previous will. You might not agree with that thinking but the decision was theirs to make.

That they don’t remember afterwards is not evidence - capacity is at the time of making the will.

You don’t say what relation you are or the size of the estate or your relationship with the beneficiary or indeed the deceased’s relationship with the beneficiary. How long before death was the will made? That could also be a piece of information that could be in or not in your favour. However, I wonder if there is any way of ‘settling’ this outside of court by negotiation- if there is only one beneficiary and with whom you have a good relationship would that be possible?

In the situation I am involved in, my friend’s nephew saw her every day and helped her every day. The other nephew she saw infrequently but he was always at the other end of a phone if she had needed him, there was no fall-out. I think as she became less able to manage she simply saw and valued the level of support and love the nephew she left everything to, showed her. It meant a great deal to her. He had no idea what she had done. Only my friend, the witness and the solicitor knew. 

You may have to balance the size of the estate, any additionality you may get if successful against costs - paid by you or taken from the estate - and the possible long term stress before deciding what you will do.

 

 

Thank you for taking the time

Thank you for taking the time to comment and offer advice

My situation is that myself and the other beneficiary were for the past 10 years plus executors to previous will's and appointee's for a EPA and when the time came that our relative needed help we both stepped up and did our bit, it just seem that the deceased forgot how much I was visiting and helping, they actually stated that we were not close and visits were rare, which was not the case.

I truly believe that their memory and confusion caused them to drastically change their will, but as you point out, to the solicitor they probably seemed totally rational and capable and the GP didn’t know the contents of the will.

The medical records show some incidents of confusion and memory issues but possibly not enough to prove lack of capacity.

My self and the other beneficiary were very close until a year before when the other person suddenly stopped talking to me!

I just have to except that to some people money is more important to them than family.

 

 

 

 

 

Lusia

Profile: stressed, semi retired person

Are you sure the GPdid not

Are you sure the GPdid not know the contents of the will? This is what my understanding is from the reading I did.

‘Witnesses witness that you have the mental capacity and intent to make a will. The witnesses see you and your actions during this time and can later testify to your state of mind if it is ever called into question. Witnesses are there to certify you have made and signed the will. They may know but don't have to know the will's contents

Witnesses should be credible adults who are likely to survive you, as they may need to testify about the signing of your will after your death. To reduce any potential conflict of interests, witnesses should not be named beneficiaries in the will.’

The GP may have known.

I think it is hard to accept that your relative may have changed their will with full understanding of what they were doing because they have effectively intimated that they valued the other person more and that is hurtful.

There may have been all kinds of reasons that you might not be aware of.  I know my friend felt the nephew she left the money to had not been as advantaged in life as his cousin had. She wanted him to own a house so perhaps she tried to help him.  The point is it was her money to do with as she pleased and two professionals felt she had the capacity that day to make that decision. The same thing seems to have happened with your relative. 

I am presuming you did not help them in the expectation of being financially rewarded but because you cared about her. If she had lived for years there could have been no estate to inherit and it might all have gone on care home fees. Would you be upset then that you were not named in the will and had not been remembered?  Or is this about  money. I am not trying to be rude. Money is a divisive thing.

Medical records

 

Medical records now received and there are entries of confusion/hallucinations and memory loss going back at least a year and a half before the Will was changed, the only entry on the day of signing the Will is BP check a chat about pacmaker then it says signature witnessed.

How is it ever going to be possible to show what capacity a person has on the days that count? The days they gave instruction and signed.

How much does a person have to have had these episodes for? To be relevant to show that they may have lacked capacity?

Lusia

Profile: stressed, semi retired person

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