Probate/intestacy stalemate query

posttokev

RAS wrote: »

Do you have to be legally represented? Could you go as Litigant in person?

I've no idea. Could you tell me a bit more about this please and what it would entail?

posttokev

posttokev wrote: »

Solicitor's now telling us the application for a Disclosure Order will cost 3 grand...

...and this is the first time this cost's been mentioned, by the way.

posttokev

Some good news, finally...

After a strongly-worded letter, the other side are finally sending us the Will file. I imagine it's being editing to within an inch of its life at the moment, to minimise any signs of whatever it is they've been trying to hide, but at least we'll get to see something.

(I guess there'd be no way of us proving they're withholding information?)

John_Pierpoint

I have read my way through the twists and turns of this thread.

I think "uncle" is hard at work trying to force you to take court action, so they could as the process of discovery, force you to deliver to them your evidence.

Begrudgingly they, for fear of not being able to claim costs, have now agreed to be "reasonable".

My fear is that mum's argument cannot be that undue influence was used as she cannot prove it. So it then becomes "my brother is an alcoholic scumbag and drug addicts are not to be trusted"?

So if it gets to court the legal argument will be "is this photocopy admissible in place of the original will (supposedly lost in a burglary)".

Even if it can, the judge is unlikely to support uncle the executor, if mum's QC can demonstrate in court that lies are being told, however small - the oath is still worth something.
I cannot help you with any personal experience of legally contested wills but I have been at two funerals where there was a nasty atmosphere, because the "logical" beneficiaries did not get what they were expecting.
In one case, though not a beneficiary or a witness, I had been given a photocopy of the will as the deceased was fearful that the will could be contested or destroyed.

[I did a superb job of pretending I knew nothing about what was in the will or where it was stored but suggested that searching the bank statement might reveal who had been paid to draft it].

In the second case the executor was given the will and the solicitor who was storing it drafted it had covered himself with a memo to the deceased saying that he had [STRIKE]advised[/STRIKE] suggested that the client should discuss the situation with his three children, but the client had refused to do so.

My only practical experience of a civil dispute coming to court, was a dispute between neighbours. Neighbour A had taken possession of Neighbour B's land, self evidently meaning to keep it as he had taken a photograph of he and his brother standing in front of the fence they had just erected, reading a clearly visible daily newspaper. In the case of adverse possession taking over from as freehold [unregistered but not relevant here] it takes 12 years squatters. However extinguishing a private right of way takes 20 years. Neighbour B tracked down witness with a legal right to use this right of way to serve land C on foot and with his horses and carts.
This witness was prepared to sell land C to neighbour B.
I was witness B1 as the long established local resident and witness B2 owned land C and in the past had correspondence with B about the right of way.

A produced several "independent" witnesses and of course was cross examined. I knew these witnesses were lying, some looked guilty as they did so and some were absolutely brazen about their evidence. Fortunately the "judge" could spot the discrepancies in the evidence (it is much better to say I don't know or I cannot remember, than try to make it up) and one of the pictures put into the evidence had been "photo-shopped" and the judge spotted it.

However my point is that this pantomime lasting about a day and a half in court but months of solicitor's input, cost well into 6 figures, when all the costs had been totted up.

How much can mum and uncle raise, will there be anything left ?

posttokev

Thanks for the reply, John.

To clarify, my mother's argument is not that undue influence was used. We are steering clear of anything that is merely conjecture. My uncle is an alcoholic scumbag but that's not an argument we're running with either! (Also, as regards conjecture, the crux of my uncle's argument is that the original Will was stolen - something he cannot prove.)

The Will file, specifically the Will note, has raised a number of issues/questions:

My uncle's solicitor, when acting with regards to my grandmother's will, states: "Client attended the office in order to sign her Will". There is no reference to my grandmother having been on her own, yet in a separate witness statement, my uncle's solicitor states explicitly that this is the case. How can she do so when this is not recorded in the note? Does she just have a very good memory?

My uncle/grandmother's solicitor refers to "her daughter [having] disowned her." Should she have inquired as to when this estrangement began? (This was under 3 months earlier as of the date of the Will being written and under 2 months previous of when a Will questionnaire was completed.) In such circumstances where contact has been lost for such a short period of time, does this even classify as an estrangement? That is, can it realistically be argued that my grandmother had actually been "disowned" by my mother when such little time had elapsed since the last contact between the two of them? There was no indication at the time my mother and grandmother had a disagreement that it would ever lead to a loss of contact for such a protracted period. (We find the descriptions of "disowned" and "estrangement" suspicious.)

My uncle/grandmother's solicitor states that my grandmother "has no knowledge of why the daughter has disowned her." Is this significant in contradicting the argument that she had actually been disowned? (And why is this being characterised as "disowned" at this very early stage?)

My uncle/grandmother's solicitor states that my grandmother "doesn't feel that she wants to give her daughter anything whilst she has disowned her." Can we argue therefore that the Will was invalidated as a reconciliation had taken place in December 2011 and can be demonstrated to have taken place?

Further, we also note that, in her separate witness statement, my uncle/grandmother's solicitor only refers to my grandmother not wanting to give my mother anything and omits to mention the further stipulation regarding "whilst" she had been "disowned".

My uncle/grandmother's solicitor refers to my grandmother "[getting] very upset." (In her office, as the Will was being drafted). Should a Will have been written under these circumstances? In her witness statement, my uncle/grandmother's solicitor states that mother was not of ill health or insufficient capacity, but omits to mention that she got "very upset".

My uncle/grandmother's solicitor states that "the client advised me that she wanted the Will to be kept at home". Was my grandmother not warned of the risks in doing so? Further, there had been robberies at my grandmother's property in the past and she had no burglar alarm. Should my uncle/grandmother's solicitor have enquired as to how secure the property was?

From the information supplied elsewhere in the Will file, we also note that a substantial amount of money remains unaccounted for. (This can be demonstrated.) Further, jewellery and other items also remain unaccounted for.

We are also enquiring as to the significance of a disagreement between my uncle/grandmother's solicitor and my uncle regarding a phone call (mentioned previously in this thread) he refers to in his initial witness statement. (He says the solicitor was called when the original Will was stolen.) My uncle/grandmother's solicitor now contradicts him, refuting this phone call took place.

My mother will be speaking to her solicitor about this tomorrow. We'd rather not have to go as far as even filing a Defence but hope that, now we seem to have such a strong case, once the other side has seen our Defence they will settle at that point. (Overly optimistic?) It's taken 12 months to get the Will file out of my uncle/grandmother's solicitor but they've finally been forced to hand that over and now, hopefully, they're on the back foot and not far off settling. Hopefully...

(We don't want this going all the way to court obviously, but if it did, all those "witnesses" would be shot down in flames and it would be comical watching them all tie themselves up in knots.)

posttokev

...I guess the main thing that strikes us now is that:

The thrust of the other side's argument has been that the Will was stolen.

The thrust of our argument could be that if, by the other side's own admission, the Will only stood whilst my grandmother had been "disowned", the entire Will is negated by the fact that the "disownment" (if that is a word - I don't think it is!) later came to an end, which is accepted by all parties. (So, whether it was stolen, which cannot be proved anyway, is neither here nor there. The Will doesn't stand as my grandmother wasn't "disowned" in the end.)

securityguy

" the Will only stood whilst my grandmother had been "disowned", the entire Will is negated by the fact that the "disownment" (if that is a word - I don't think it is!) later came to an end, "

Good luck with that theory. You'll need it.

dzug1

posttokev wrote: »

...I guess the main thing that strikes us now is that:

The thrust of the other side's argument has been that the Will was stolen.

The thrust of our argument could be that if, by the other side's own admission, the Will only stood whilst my grandmother had been "disowned", the entire Will is negated by the fact that the "disownment" (if that is a word - I don't think it is!) later came to an end, which is accepted by all parties. (So, whether it was stolen, which cannot be proved anyway, is neither here nor there. The Will doesn't stand as my grandmother wasn't "disowned" in the end.)

I'd say that argument is a 100% certain loser - the will is not negated by a reconciliation taking place. If it was ever valid it remains so until replaced or deliberately revoked by the testator.

posttokev

securityguy wrote: »

" the Will only stood whilst my grandmother had been "disowned", the entire Will is negated by the fact that the "disownment" (if that is a word - I don't think it is!) later came to an end, "

Good luck with that theory. You'll need it.

Then why is it stated as such?

posttokev

dzug1 wrote: »

I'd say that argument is a 100% certain loser - the will is not negated by a reconciliation taking place. If it was ever valid it remains so until replaced or deliberately revoked by the testator.

Again, then why is it stated as such?