Probate/intestacy stalemate query

getmore4less

securityguy wrote: »

A will is a document attested to by its witnesses, .

Only the signature, the contents may be unknown by the witnesses.

AMILLIONDOLLARS

If your uncle has a copy, why doesn't he just produce it as evidence. It would stop all this confusion.

AMD

posttokev

AMILLIONDOLLARS wrote: »

If your uncle has a copy, why doesn't he just produce it as evidence. It would stop all this confusion.

AMD

He will be, but it's not as straightforward as that. In the absence of the original, the photocopy may well not be accepted as valid. This is why he got in touch with my mother a year ago to ask her to sign the entire estate over to him.

securityguy

getmore4less wrote: »

Only the signature, the contents may be unknown by the witnesses.

Apologies, that's what I meant by "attested". Obviously, even if the witnesses were to know the contents, they can't make any useful comment about it.

NAR

If the witnesses names on your uncle's copy of the will are known to the family, then it should be easy for them to remember they witnessed the will, thus adding weight to your uncle's claim.

If they are say two of the solicitor's staff it will be very unlikely that they will remember witnessing a particular will, thus making proof more difficult, but still likely to be accepted as they were staff of the solicitor.

However if they are strangers, or people known to your uncle alone, it may be easier to challenge and harder for him to prove as a true copy.

If the witnesses are unknown ie no details on the "copy" of the will, I think your uncle will have most difficulty proving that he has a copy of the original.

posttokev

NAR wrote: »

If the witnesses names on your uncle's copy of the will are known to the family, then it should be easy for them to remember they witnessed the will, thus adding weight to your uncle's claim.

If they are say two of the solicitor's staff it will be very unlikely that they will remember witnessing a particular will, thus making proof more difficult, but still likely to be accepted as they were staff of the solicitor.

However if they are strangers, or people known to your uncle alone, it may be easier to challenge and harder for him to prove as a true copy.

If the witnesses are unknown ie no details on the "copy" of the will, I think your uncle will have most difficulty proving that he has a copy of the original.

The witnesses are relatives who stand to benefit if my uncle is successful.

posttokev

Reply from boards.fool.co.uk...

"Did the grandmother's solicitor who drew up the will, know that grandmother had two children (the son to whom everything was left and the dis-inherited daughter - your mother)? (Yes)

If the solicitor knew that a daughter (your mother) existed then the solicitor should have advised your grandmother to write a letter of explanation to your mother (copy held by solicitor to be handed to mother on grandmother's death) as to why she was to be dis-inherited and to have taken comtemporaneous notes of that meeting and advice. And surely the solicitor should also have checked what grandmother had done following that advice if no letter was forthcoming? If the solicitor gave no such advice and has no comtemporaneous notes then, in my opinion, the solicitor has been negligent. I believe that one of the advantages of using a solicitor (rather than a Will writing service) should be that situations like this are avoided.

If the solicitor did not know that grandmother had a daughter then, in my opinion, either the solicitor was negligent in not checking or the son (your uncle) did not tell the truth to the solicitor.

Can the Will be challenged on the basis that either the solicitor was negligent or your uncle was dishonest?"

My mother never received a letter of explanation and, as far as we know, no notes of this meeting were taken.

Can anyone give me some feedback on this?

Mojisola

posttokev wrote: »

The witnesses are relatives who stand to benefit if my uncle is successful.

Witnesses can't be beneficiaries and neither can their spouses.

posttokev

Mojisola wrote: »

Witnesses can't be beneficiaries and neither can their spouses.

Officially, yes. In reality, this is what will happen.

posttokev

Here's a response from the Fool Boards site, together with my response. Any thoughts would be much appreciated.


Kevin,

I'm guessing, but I presume your uncle is sole executor? And I presume he has obtained probate by now. But if he hasn't you mother could consider entering a Caveat. What court proceedings is your uncle bringing? Why did your uncle need to ask your mother that the entire estate be handed to him?

I would have thought that solicitors should act carefully and give suitable advice when they know that someone's child is to be dis-inherited.

If no advice was given to your grandmother that she should write a letter explaining to your mother why she was to be disinherited, then that suggests the solicitor was negligent or the idea was vetoed by your uncle (and opportunism, coercion and deception by him). Had your mother fallen out with her mother or brother?

I'm not even sure your mother can make a formal complaint against your grandmother's solicitor because your mother is not a beneficiary of your grandmother's Will.
(As an aside my wife made a complaint about her deceased mother's solicitor - rejected at first, the solicitor didn't understand her obligation towards beneficiaries and had to be reminded by my wife and the Legal Ombudsman - and later learnt from the solicitor something that meant the executors, my wife's sister and cousin, had lied to my wife and been deliberately deceitful.)

It may be worth checking with the Legal Ombudsman (or Solicitors Regulation Authority) whether a complaint can be referred to them in the event of an unsatisfactory reply from the solicitor to a formal complaint by your mother.

If your mother is considering challenging the Will, then a Larke v Nugus letter may be helpful.




Thanks again for taking the time to respond.

No-one is executor at the moment. Due to the absence of the original will, my uncle got in touch with my mother a year ago via his solicitor to ask her to sign the entire estate over to him. At this stage, she hadn't even been forwarded the copy version of the will that he had - she was just being asked to do this without knowing anything about the contents of the will or the estate. My mother did enter a caveat but I think this was over 6 months ago so would it have run out by now?

My mother had fallen out with my grandmother. Not a massive falling out at the time, but from the point at which they stopped speaking (they were later reunited) to the point at which a will disinheriting her was written, only 3 months had elapsed. This is why we think she was coerced into it by my uncle, who had always been jealous of my mother and had always coveted his parents' property, regarding it as his entitlement.

I should also point out for clarity that my grandmother's solicitor and my uncle's solicitor are the same.

I'll definitely follow up the Ombudsman and SRA points. Thank you once more for your very helpful responses.

Kind regards,

Kevin.