Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@. Skimlinks & other affiliated links are turned on

Search
  • FIRST POST
    • g67bbx
    • By g67bbx 7th Sep 17, 9:35 PM
    • 6Posts
    • 2Thanks
    g67bbx
    Advice on a potential contest
    • #1
    • 7th Sep 17, 9:35 PM
    Advice on a potential contest 7th Sep 17 at 9:35 PM
    Hi
    I am asking advise on my grandmothers will.

    There are two daughters of the deceased. Both have been named in the will. One has been named as receiving everything (and is the executrix), whilst the other has been named as receiving nothing for failing to maintain meaningful contact. The one who is getting nothing lives abroad. She is stating that the deceased promised to give her half of the sale of the property some years ago. However, like I said she is named in the will as receiving nothing. She is trying to claim that the deceased had a stroke (which is true) and began acting strangely afterwards, including cutting off the phone. However the will was made before she had the stroke in the presence of two secretaries for the solicitor. The reasons for cutting her out of the will include sending nasty emails to her sister. She is now claiming that her sister is manipulative and has been spending her mothers money since her dad passed away (how would she prove this untrue allegation)
    I have read that " You would have the right to bring a claim but (in England and Wales) you’d only succeed if you could show that you’d been dependent on your parent financially." What does this mean in layman's terms. Would she be entitled to something, overriding the will. Would she have to show proof that an agreement had been made to split the sale.
    BTW, the sale happened last year, and the deceased moved into the family home (of the person who everything was left to) and paid off the mortgage using proceeds of the property.
    Advice would be appreciated as its stressing us out.
Page 1
    • Yorkshireman99
    • By Yorkshireman99 7th Sep 17, 11:32 PM
    • 2,948 Posts
    • 2,314 Thanks
    Yorkshireman99
    • #2
    • 7th Sep 17, 11:32 PM
    • #2
    • 7th Sep 17, 11:32 PM
    Hi
    I am asking advise on my grandmothers will.

    There are two daughters of the deceased. Both have been named in the will. One has been named as receiving everything (and is the executrix), whilst the other has been named as receiving nothing for failing to maintain meaningful contact. The one who is getting nothing lives abroad. She is stating that the deceased promised to give her half of the sale of the property some years ago. However, like I said she is named in the will as receiving nothing. She is trying to claim that the deceased had a stroke (which is true) and began acting strangely afterwards, including cutting off the phone. However the will was made before she had the stroke in the presence of two secretaries for the solicitor. The reasons for cutting her out of the will include sending nasty emails to her sister. She is now claiming that her sister is manipulative and has been spending her mothers money since her dad passed away (how would she prove this untrue allegation)
    I have read that " You would have the right to bring a claim but (in England and Wales) you’d only succeed if you could show that you’d been dependent on your parent financially." What does this mean in layman's terms. Would she be entitled to something, overriding the will. Would she have to show proof that an agreement had been made to split the sale.
    BTW, the sale happened last year, and the deceased moved into the family home (of the person who everything was left to) and paid off the mortgage using proceeds of the property.
    Advice would be appreciated as its stressing us out.
    Originally posted by g67bbx
    It sounds very unlikely that the disinherited daughter has a valid claim. The executor should ask the solicitor if there are any notes about when the will was made. If the disinherited daughter wants to claim she is likely to have to pay a lot up front to a solicotr to get the case taken on.
    • securityguy
    • By securityguy 8th Sep 17, 4:43 AM
    • 2,404 Posts
    • 3,652 Thanks
    securityguy
    • #3
    • 8th Sep 17, 4:43 AM
    • #3
    • 8th Sep 17, 4:43 AM
    " " You would have the right to bring a claim but (in England and Wales) you’d only succeed if you could show that you’d been dependent on your parent financially.""

    You are conflating two issues. People who are financially dependent can challenge valid wills made by competent testators. They are asking a court to find that the historically unchallenged right of people to dispose of their assets as they wish is, in their particular case, mitigated by an obligation to continue to support after death people they have supported before death. Courts rightly take a high threshold for this, but there is legislation (Inheritance (Provision for Family and Dependants) Act 1975) to provide a basis for this. Such challenges do not challenge the validity of the will: they ask the court to vary its terms.

    Pretty much anyone can challenge the validity of a will, asking for it to be set aside and replaced with some other will, or the estate placed into intestacy, on the basis that the testator was not competent or was under undue influence or whatever else. Courts then adjudicate. They usually reject such claims, and there is a lot of bluff in claims that such actions are going to be started, but situations like this are where well-intentioned amateur wills come back to haunt the executors.
    • g67bbx
    • By g67bbx 8th Sep 17, 5:02 AM
    • 6 Posts
    • 2 Thanks
    g67bbx
    • #4
    • 8th Sep 17, 5:02 AM
    • #4
    • 8th Sep 17, 5:02 AM
    Thank you. I shall pass on this and advise the executor to ask the notes to be released. If she made a claim, would she have to come to the UK to do so?
    • Yorkshireman99
    • By Yorkshireman99 8th Sep 17, 6:43 AM
    • 2,948 Posts
    • 2,314 Thanks
    Yorkshireman99
    • #5
    • 8th Sep 17, 6:43 AM
    • #5
    • 8th Sep 17, 6:43 AM
    She would have to instruct a solicitor in the UK and not appearing in court would make it even more difficult to prove her case.
    • securityguy
    • By securityguy 8th Sep 17, 6:51 AM
    • 2,404 Posts
    • 3,652 Thanks
    securityguy
    • #6
    • 8th Sep 17, 6:51 AM
    • #6
    • 8th Sep 17, 6:51 AM
    Thank you. I shall pass on this and advise the executor to ask the notes to be released. If she made a claim, would she have to come to the UK to do so?
    Originally posted by g67bbx
    In law? No. In practice? Yes. If it actually came to proper legal action, then the only evidence (on the facts you have presented) that the will is invalid is the testimony of the sister. There's possibly documentary evidence to support the contention that the will is _valid_, but nothing to support the idea that it is not, beyond the sister's feelz. That is pretty sketchy evidence that is unlikely to get anywhere anyway, but without the ability of anyone (either the executor's lawyers or the court) to actually cross-examine the evidence then it's going nowhere. A solicitor willing to take such a case would be wise to secure payment up front.

    Is she bluffing in the hope that the executors cave at the mere thought of level action? Almost certainly. Does she understand the law or the likely outcomes given the evidence she has? Almost certainly not.
    • Brighty
    • By Brighty 8th Sep 17, 8:46 AM
    • 684 Posts
    • 346 Thanks
    Brighty
    • #7
    • 8th Sep 17, 8:46 AM
    • #7
    • 8th Sep 17, 8:46 AM
    The will only deals with what the grandmother had when she died. If she sold her house before then and gave all the proceeds to one of her daughters, that's her prerogative and contesting a will, even if successful, wouldn't get her a share of the house money, only a share of what gran had in the bank.

    However, under the 7 year rule, as the gift was only last year, the cash is counted as part of her estate for IHT purposes.
    • Malthusian
    • By Malthusian 8th Sep 17, 9:37 AM
    • 2,864 Posts
    • 4,074 Thanks
    Malthusian
    • #8
    • 8th Sep 17, 9:37 AM
    • #8
    • 8th Sep 17, 9:37 AM
    She is now claiming that her sister is manipulative and has been spending her mothers money since her dad passed away (how would she prove this untrue allegation)
    Well, if we take the sentence literally, she can't as it's untrue.

    If the mother gave the sister money to spend of her own free will, then there is nothing to prove as no-one has done anything wrong.

    If the sister (your mother?) was stealing the money, either directly or by abusing a Power of Attorney, some combination of the mother's bank statements and evidence of a sudden jump in the sister's expenditure would be what the court would look at. Trouble is though, even if inheriting sister had been stealing her mother's money, disinherited sister has lost nothing, as she wasn't going to inherit her mother's money anyway.

    Would she have to show proof that an agreement had been made to split the sale.
    Even if she could prove that the mother promised her half the house it's irrelevant. The Will is what matters. The mother may have promised the disinherited sister the moon on a stick but if she didn't put it in her Will, then words are wind.

    And a claim that she was dependent on her mother sounds like a non-starter, unless the mother was making regular payments to her or something else we don't know about.

    I see no reason to stress about it. You are holding all the cards and it doesn't sound like the disinherited sister has a leg to stand on.
    • FreeBear
    • By FreeBear 8th Sep 17, 12:15 PM
    • 1,229 Posts
    • 1,773 Thanks
    FreeBear
    • #9
    • 8th Sep 17, 12:15 PM
    • #9
    • 8th Sep 17, 12:15 PM
    Agree with other posters regarding a claim - If it is of interest, have a look at the Wright-v-Waters[2014] - The tale of a disinherited daughter that attempted to make a claim under the Inheritance Act and lost.

    One question that hasn't been asked - Has probate been granted, and how long ago ?

    There is a six month time limit to initiate proceedings after probate has been granted. Outside of this, she would need to get high court permission (very expensive) and demonstrate a reasonable case (unlikely).
    Her courage will change the world.

    Treasure the moments that you have. Savour them for as long as you can for they will never come back again.
    • g67bbx
    • By g67bbx 8th Sep 17, 1:30 PM
    • 6 Posts
    • 2 Thanks
    g67bbx
    Well, if we take the sentence literally, she can't as it's untrue.

    If the mother gave the sister money to spend of her own free will, then there is nothing to prove as no-one has done anything wrong.

    If the sister (your mother?) was stealing the money, either directly or by abusing a Power of Attorney, some combination of the mother's bank statements and evidence of a sudden jump in the sister's expenditure would be what the court would look at. Trouble is though, even if inheriting sister had been stealing her mother's money, disinherited sister has lost nothing, as she wasn't going to inherit her mother's money anyway.



    Even if she could prove that the mother promised her half the house it's irrelevant. The Will is what matters. The mother may have promised the disinherited sister the moon on a stick but if she didn't put it in her Will, then words are wind.

    And a claim that she was dependent on her mother sounds like a non-starter, unless the mother was making regular payments to her or something else we don't know about.

    I see no reason to stress about it. You are holding all the cards and it doesn't sound like the disinherited sister has a leg to stand on.
    Originally posted by Malthusian
    From time to time gran did give my mother money, either to help out at home or to pay for car repairs etc, not to spend recklessly.No POA was held however mother was allowed to view the bank accounts but could not withdraw/sign etc. Gran did not give any money at all to the disinherited sister since she had been abroad (at least 19 years)
    • g67bbx
    • By g67bbx 8th Sep 17, 1:31 PM
    • 6 Posts
    • 2 Thanks
    g67bbx
    Agree with other posters regarding a claim - If it is of interest, have a look at the Wright-v-Waters[2014] - The tale of a disinherited daughter that attempted to make a claim under the Inheritance Act and lost.

    One question that hasn't been asked - Has probate been granted, and how long ago ?

    There is a six month time limit to initiate proceedings after probate has been granted. Outside of this, she would need to get high court permission (very expensive) and demonstrate a reasonable case (unlikely).
    Originally posted by FreeBear
    The probate application is in and we are expecting it back in 2-3 weeks
    • Malthusian
    • By Malthusian 8th Sep 17, 2:32 PM
    • 2,864 Posts
    • 4,074 Thanks
    Malthusian
    From time to time gran did give my mother money, either to help out at home or to pay for car repairs etc, not to spend recklessly.
    Originally posted by g67bbx
    That was your gran's choice and none of your aunt's business. Even if your mother "manipulated" her into giving the money, your gran was still free not to be manipulated.

    Gran did not give any money at all to the disinherited sister since she had been abroad (at least 19 years)
    So she doesn't have a leg to stand on in a claim that she was financially dependent on gran.

    There's no reason for stress at all in what you've posted. Your aunt could bring a claim against the estate. So could I, if I was willing to pay the legal costs, even though I've never met your gran in my life. But I would have about as much chance of winning as your aunt does.
    • konark
    • By konark 9th Sep 17, 3:00 AM
    • 862 Posts
    • 664 Thanks
    konark
    As the will was made in a solicitor's office it's pretty watertight, solicitors will not write wills for people they deem to have inadequate capacity to understand.

    As others have noted, the main asset, the house, has been sold and gifted and is no longer part of the estate.

    I'm afraid the other sister is whistling in the wind and her chance of success in altering the will is precisely zero.
    • g67bbx
    • By g67bbx 14th Sep 17, 5:30 PM
    • 6 Posts
    • 2 Thanks
    g67bbx
    Thank you for everyone's advice so far.

    We have taken solicitor advice today. They seem to think that she is able to make a claim as she is a child of the deceased and could be entitled to up to approx 1/3rd of the remaining estate and he advised us to offer a settlement out of court!!!
    He advised that it would be down the inheritance act route, but surely she would have to prove she was dependent on the deceased. Apparently as she is poor this counts?!?! However the deceased did not give her any money for over 19 years!
    Do we need to see a different solicitor??
    • TW1234
    • By TW1234 14th Sep 17, 6:37 PM
    • 117 Posts
    • 109 Thanks
    TW1234
    There is no straight cut answer and that is why your solicitor has suggested making an offer.
    The sister does not have to be currently or previously dependent but each case is examined on merit. This includes decisions about whether the deceased had any moral obligation to support the claimant, whether the claimant is not only "poor" but has some reason to have that poverty alleviated by the deceased, whether the claimant is able to alleviate their circumstances by employment if such were available and offerred, and many other arguable matters.
    You (and your solicitor) will have to weigh up the likelyhood of a successful claim and the potential costs that you may incur in defending a claim against the cost of "buying off" the claimant.
    It may seem unfair, but that is for others to judge.
    Last edited by TW1234; 14-09-2017 at 6:42 PM. Reason: clarify
    • Yorkshireman99
    • By Yorkshireman99 14th Sep 17, 7:25 PM
    • 2,948 Posts
    • 2,314 Thanks
    Yorkshireman99
    Thank you for everyone's advice so far.

    We have taken solicitor advice today. They seem to think that she is able to make a claim as she is a child of the deceased and could be entitled to up to approx 1/3rd of the remaining estate and he advised us to offer a settlement out of court!!!
    He advised that it would be down the inheritance act route, but surely she would have to prove she was dependent on the deceased. Apparently as she is poor this counts?!?! However the deceased did not give her any money for over 19 years!
    Do we need to see a different solicitor??
    Originally posted by g67bbx
    Did you ask a solicitor with proven expertise in thi field? The danger is searching for one who will tell you what you want to know rather than the reality! I still don't think she has any realistic chnace of success. IMHO she needs her bluff called.
    • TBagpuss
    • By TBagpuss 14th Sep 17, 8:04 PM
    • 5,864 Posts
    • 7,617 Thanks
    TBagpuss
    Is the solicitor one who specialises in contentious probate? If not, it may (depending on the vlaue of the estate and how strongly your mother feels about it) be worth seeing a specialist, or asking your solicitor to arrange for you to get Counsel's opinion, so you can have specialist advice tailored to the specific circumstances.

    There are no guarantees, and court proceedings are time consuming and very expensive. Although your aunt might be ordered to pay costs if she lost, that's only any good if she has any assets. If not, then the costs will come out of the estate. It may be that, looking at it very pragmatically, it's more cost effective to make an offer than to fight, even if you have a good chance of winning.

    If she does make a claim, the the court has to consider whether her mother failed to make reasonable provision for her. It is not necessary to establish that she was dependent on her mother, but if she can show she has genuine needs that is relevant, so if she is badly off, she is more likely to succeed than if she is financially secure.

    It isn't a straightforward area of law and I would guess that the solicitor you saw suggested making an offer as it is the lower risk option - you can limit your costs and deal with the issue fairly quickly. (and making offers early on can help limit your risk for costs, if things don't settle and the case goes to court)

    But for anyone to give roper advice they need the full facts, including things like the value of the estate, the exact instructions mum gave the solicitors when she made the will, whether she let letter of wishes about aunt and so on. Presumably the solicitor who gave you mum the advice about settling had more details than we do, and was in a better position to advise. But if you are unsure, suggest your mum asks whether they deal with a lot of contested cases and whether they would recommend getting Counsel( barrister)'s opinion / advice
    • p00hsticks
    • By p00hsticks 14th Sep 17, 10:51 PM
    • 5,587 Posts
    • 5,132 Thanks
    p00hsticks
    Thank you for everyone's advice so far.

    We have taken solicitor advice today. They seem to think that she is able to make a claim as she is a child of the deceased and could be entitled to up to approx 1/3rd of the remaining estate and he advised us to offer a settlement out of court!!!
    He advised that it would be down the inheritance act route, but surely she would have to prove she was dependent on the deceased. Apparently as she is poor this counts?!?! However the deceased did not give her any money for over 19 years!
    Do we need to see a different solicitor??
    Originally posted by g67bbx
    Can we just confirm that your gran lived in England or Wales ?
    • FreeBear
    • By FreeBear 14th Sep 17, 11:56 PM
    • 1,229 Posts
    • 1,773 Thanks
    FreeBear
    We have taken solicitor advice today. They seem to think that she is able to make a claim as she is a child of the deceased and could be entitled to up to approx 1/3rd of the remaining estate and he advised us to offer a settlement out of court!!!

    He advised that it would be down the inheritance act route, but surely she would have to prove she was dependent on the deceased. Apparently as she is poor this counts?!?! However the deceased did not give her any money for over 19 years!

    Do we need to see a different solicitor??
    Originally posted by g67bbx
    I was in a similar position a couple of years back facing the (remote) possibility of an IA claim. None of the solicitors I spoke to suggested making an offer to settle, and I'm surprised that it has been suggested to you.

    Stick to your guns and carry on with probate and ignore anything that doesn't bear an official court seal. Six months from the date probate is granted, the window for making a claim will have closed and you can finish winding up the estate.

    The fact that she hasn't got any money will leave her severely disadvantaged in trying to pursue a claim - It is a very expensive undertaking with a limited chance of succeeding.

    No need to consult another solicitor until such time as you receive any court papers. If any papers do turn up, find a solicitor experienced in dealing with contentious probate - Your average high street outfit is unlikely to be familiar with case law or be able to offer sound advice.
    Last edited by FreeBear; 14-09-2017 at 11:59 PM.
    Her courage will change the world.

    Treasure the moments that you have. Savour them for as long as you can for they will never come back again.
    • konark
    • By konark 15th Sep 17, 2:40 AM
    • 862 Posts
    • 664 Thanks
    konark
    Yes, don't start worrying until your aunt puts in a caveat or makes a claim on the estate, she is probably just bluffing. The fact that she is living abroad would suggest she is not destitute, and it will make it difficult for her to pursue the matter legally.

    From your original post the aunt's main beef was that the will was invalid as your gran had had a stroke and lacked capacity and that you had spent her savings. If she takes this line she will not succeed. She never even mentioned the destitute angle.

    With the house gone just how much is the estate now worth? It may not be enough to fight over.
    Last edited by konark; 15-09-2017 at 2:42 AM. Reason: added
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

3,513Posts Today

7,684Users online

Martin's Twitter