Any Lawyer money saving tips re Will contest_

jane1960

You are all so kind thank you.

"Have you seen a copy of either of the wills"? Yes I saw a copy of the 2007 Will, the original of which is not with my mothers usual solicitor but one that my brother chose, he also handled the divorce. I have not seen a copy of the 2000 Will but I know the contents, mum told me when she made it and the solicitors which she used all of her life until my brother took her to live with him, confirmed the contents with me last week".my brother and I were named joint executors and joint inheritors of her estate.

I have only spoken on the phone with my stepfather, I knew nothing about the divorce or the settlement until 2 weeks ago and I have no idea what the reason was for the divorce, she had no idea that she was divorced or getting a divorce. She was most certainly not in the right mental conditions to make such a decision. She was suffering from vascular dementia.

"find out if your brother did have POA" My mothers solicitors also confirmed that he did have an enduring PoA, when I asked them how he had obtained this without me being notified they were not able to answer me and have since tried to refer me to another solicitor colleague as they claim the case would need a more "senior solicitor".

I also phoned my brothers solicitor and they confirmed that they registered the POA after it was released to them, I also asked them if they were aware that my mother was suffering from mental illness when she made the Will with them in 2007 to which they answered that they were no longer able to speak with me.

I have contacted my mothers doctors to see if they will give me information on her medical history.

I wrote to my brother asking him for an accounting of her assets, to find out what has happened to them, he has just ignored my letter but I know that he received it through another family member and he wasn't pleased.

"Do you have legal cover as part of your household insurance"? I hadn't thought of that! although as I live in the Canary Islands I don't know if it would cover for the UK.

"Would the police be able to give you advice"? I had thought of that one but I would have to present hard evidence which I cannot get unless I can have access to her bank accounts etc., My brother has made sure that I cannot get to anything, I am also scared of his reaction if I involved the police.

minimoneysaver

Is the divorce legal, considering your mum's mental state? I'm just wondering if all of this constitutes a criminal offense by your brother. There must be a solicitor or two on here.

Errata

she had no idea that she was divorced or getting a divorce. She was most certainly not in the right mental conditions to make such a decision. She was suffering from vascular dementia

This doesn't seem quite right. Did she have a solicitor?
However............can I suggest you call Action on Elder Abuse? (google for the website). They have a free helpline and may be able to give you information on who you need to speak to about all this - such as the Public Guardians office and given the quote above, perhaps the Law Society (I don't believe solicitors can take instruction from someone who isn't aware of what's going on).

jane1960

This is another point that I have been trying to establish because if I can prove that the Will is illegal then it stands to reason that the divorce is too?? Therein lies my problem .... proving that the Will is illegal is expensive....

minimoneysaver

HOW TO CONTEST A WILL IN THE UK


Our specialist solicitors are disputed probate experts who can advise you on how to contest a will. There are many ways in which a third party or an aggrieved beneficiary can become involved in contesting a will. The rules and regulations and statutory requirements that must be complied with in order to execute a valid will that distributes all of the assets of the testator in the way in which was intended are legion. Solicitors are constantly reminded of the inadequacies of other lawyers but most often in the inadequacies of do it yourself wills when they are instructed to deal with a badly drafted will that does not have the effect that the deceased person intended.
When considering how to contest a will an aggrieved third party will first consider whether or not the requirements for execution of the will have been complied with in full. There are no half measures here and the will is either legally executed and is valid or it’s imperfect and thereby invalid. If that is the case then an earlier will may take precedence or if there is no earlier will or no earlier valid will then the intestacy rules take precedence and in that case if there are no surviving relatives that comply with the statutory requirements then the state can step in and claim the entire estate.

In the case of a DIY will the question of how to contest a will can often be answered by simply considering the execution of the dcument. The first place that a lawyer who is minded to get involved in contesting a will looks on behalf of a client is at the actual signing and witnessing of the will. In order to be a valid will the following conditions must be fulfilled :-

• the document must have been made by or for an adult which for the sake of the law means a person over the age of 18 years
• the contents must have been dictated by the testator of their own free choice and there must have been no undue influence which includes any form of threat or coercion from any other person
• the person giving instructions or compiling the document must not be mentally incapacitated to the extent that they were not fully aware of the meaning of the document
• The document must be signed by the testator in the presence of two witnesses who must also sign. Alternatively the testator, who may have previously signed the document, must acknowledge his signature in the presence of two witnesses who must then sign the document in the presence of all three.
• A beneficiary should not witness the document or they will lose their bequest but the remainder of the document will be valid and enforceable.

It does sometimes happen that a testator does not make any provision for a dependent and in this case a dependent would be perfectly entitled to consider contesting a will to make personal provision for their needs in the same way that the testator provided prior to death. Beneficiaries who object to provision for a valid dependent would do well to take detailed legal advice as claims for beneficiaries are often successful.
In the case of a lost or accidentally destroyed will the assumption without proof to the contrary is that the deceased testator deliberately destroyed the will prior to death with the intention of positively revoking the document. This assumption can be challenged in the high court by potential beneficiaries who may be in possession of a copy and may be able to prove actual loss or accidental damage.

minimoneysaver

Try legal500.com I got my lawyer from there and he is amazing!

RedBern

The document must be signed by the testator in the presence of two witnesses who must also sign. Alternatively the testator, who may have previously signed the document, must acknowledge his signature in the presence of two witnesses who must then sign the document in the presence of all three.

any idea who witnessed this?

As my brother claimed that there was nothing left from her estate he was not sending the will for probate.

not sure that this is his decision? I thought the formalities still have to be gone through - obviously someone will correct me when I'm wrong.

jane1960

Thanks for the website information.

No, it is most definitely NOT right, I was with my mother 6 months after divorce proceedings were instigated through my brother and a solicitor, the dementia was quite clear for all to see and the whole point of my brother having the PoA was because she was not mentally competent. Her doctor Certified her mental incapacity in 2005, she was taking anti-phsycotic drugs - haloperidol - from 2000 until her death last month. So I cannot understand how any solicitor could have gone through with this in her condition. No-one in the family knew anything about the divorce until I asked my stepfather - because my brother had on previous occasions said to me that he wanted mum to get a divorce and we had major arguments over the subject because I didn't agree and thought that my brother was angling to make some money - so he never mentioned it to me anymore. When I asked my brother before the funeral if they had been divorced he hedged so I phoned up my stepfather and he confirmed that they were divorced and that he had had to pay out a settlement of 85,000 pounds in settlement. He is over 80 so I suppose didn't question it. Neither my brother or his girlfriend mentioned it to any member of the family, no-one knew about it, certainly when I was with my mum last October she did not realise what was happening or had happened and she certainly didn't have the opportunity to spend the settlement before she died - my stepfather wrote the cheque in June and my mother died end of September.

Rikki

Has your brother given you a reason for the divorce? I feel he will say because of the divorce the new will had to be made.

I would ask your brother why you were not involved in these decisions as you were with the previous will. Tell him you believe his failure to involve you makes you believe he has been involved in some underhand practice and you feel he either discloses to you the reasoning behind his actions or you are considering taking this matter further.
If this happens he will have to make himself accountable for the reasoning behind the divorce, divorce settlement figure and its where abouts, the changes to the new will and the reasons for this. How and why did he see fit to seek POA without consoulting you or legally inform you as he should by law.(Make he aware that he has more than likely acted illegally and could find himself in serious trouble.)You will need full access to your mothers bank accounts and assets prior to her death.

I believe the reasoning in your brothers mind behind the divorce was to release her portion of the home she had shared with your step father. Enabling him access to it.

I still wonder if its worth you seeing a solicitor for free advise from an independent legal firm. Maybe just getting a legal letter written may just be enough to get him worried.

I'm sorry to say this but in reading your posts it really does seem as if he has done the dirty. He needs to make amends to both you and your step father.

Errata

Surely a solicitor won't take instructions for a divorce from someone other than the person who wants to divorce? However, there is one thing to bear in mind. If the solicitor explained in clear and simple terms to your mum what divorcing her husband meant and its implications, and he was confident that she understood him at the time of the explanations, then I think that is all he needed to do. It seems that a final financial settlement was part of the divorce. Again, if your mum understood as this it was explained to her and agreed to it, then that also seems OK. A solicitor can use their judgment about the client's ability to understand, although some of them prefer a second opinion if they feel at all uneasy. This in itself is fraught with hazard as an old age psychiatrist could give his opinion that the person was able to understand what was going on, and a week later when they signed any legal documents etc they could have deteriorated significantly.
As you have no money, the only thing I can suggest at this stage is that you speak to Action on Elder Abuse, which will be free.