Will query 31 March 2013 at 8:50AM edited 31 March 2013 at 9:30AM in Deaths, Funerals & Probate 32 replies 3.5K views

Macca19

Hi I have a query that perhaps folks could share a view on. My mother in law lost her long term non-cohabiting partner recently.

He did make a will some years ago. It was drawn up by a specialist will writing company and his signature was witnessed by my wife and I. He was of sound mind even upto the point that he died. He wasn't forced or influenced to make the will in fact my wife and i didn't even know he'd had it drawn up until he asked us to witness it.

Neither my wife or I are beneficiaries in the will. There are just two beneficiaries. He left a sum of money to his elder sister and the remaining larger part of his estate to his partner, my mother in law.

The deceased's sister has placed a caveat preventing grant of probate from being issued and her solicitor is now questioning the validity of his will.

From reading around the subject it would appear to me that the deceased's sister would struggle to successfully contest his will as she was not dependent upon him, but he has made some provision for her nonetheless.

Can anyone share a view on that?

dzug1

She can easily contest the will as not valid - not properly witnessed, etc - if that is or might be the case. That appears to be what is happening. If her contest is unsuccessful remember any costs come out of her share unless the court rules otherwise.

A claim for reasonable provision is something different (and can be made after probate is granted) - if she is adult and not dependent then she will struggle with that.

Macca19

The deceased's sister is 80 years of age, and the deceased did not support her financially in any way. The step hasn't been taken to formally contest his will at this stage but clearly the sister's solicitor is looking for something to base such a challenge upon.

dzug1

You may find this link useful:

http://www.justice.gov.uk/courts/probate/caveats

written for someone who is lodging the caveat but of use to you as well.

Macca19

From what I can make out there are six types of people who can contest a will –

i) the spouse,
ii) a former spouse who hasn't remarried,
iii) children,
iv) step-children,
v) a partner who lived with the deceased for more than two years,
vi) or any dependents

I can't see that the deceased's sister would fit any of those categories.

The impession i've been given is that the deceased's sister can't really come to terms with the thought that her brother would value his significantly long term private relationship with my mother in law more than his blood relationship with his sister.
Ironically though they lived in different parts of the country and although they swapped cards and phone calls, until last year they hadn't seen each other for some 20 years. The deceased was a very quiet and private man and we now know had simply not chosen to discuss with his sister his relationship with mother in law. Understandably his sister not only has to come to terms with his death but also the knowledge that he opted to keep his private life private.

Tricky situation for sure.

Errata

Anyone can lodge a caveat, they are given quite a limited time to provide evidence and prove their objection.

dzug1

You are still confusing the two aspects - contesting the will as invalid, which anyone with the slightest interest in it can do, and accepting it as a valid will but asking for its terms to be varied by reasonable provision from the estate - which yes only the list of people you give can do.

You seem at the moment to be in the first situation - the solicitor is hoping (or maybe not - he may be fully aware of the situation but his client is insisting.) to find some irregularity in the will that renders it invalid, in which case the rules of intestacy would come into play and the sister would get the lot (assuming no other relatives)

Even if a claim for reasonable provision was made (and there seems to be no case for it) the share of the estate that the sister already gets might be ruled enough.

Your analysis of the situation is probably correct though - sister believes she should get more/all as blood relative.

Macca19

That makes a lot of sense now. Effectively from the sisters perspective its all or nothing, i.e. It all hinges on proving that his will is invalid.

So for the time being we simply have to wait and comfort my mother in law through what is a very difficult time, made only more pressured through these latest actions.

Life eh?

Cheers, Macca

Mojisola

Macca19 wrote: »

That makes a lot of sense now. Effectively from the sisters perspective its all or nothing, i.e. It all hinges on proving that his will is invalid.

So for the time being we simply have to wait and comfort my mother in law through what is a very difficult time, made only more pressured through these latest actions.

Life eh?

Money can bring out the worst in people.

It might be that the sister has a distorted view of her entitlement because the couple weren't married and she thinks he should have left everything to her as his blood relation. It doesn't sound as if she has any case but it's not nice to deal with when everyone's grieving.

margaretclare

It looks to me (not a legal expert) as if the sister has no case.

(1) The will was properly drawn up, signed and witnessed. I assume the 2 witnesses signed it in each other's presence and in his presence? If that was the case, the fact that it was a will-writing company shouldn't matter.

(2) Some money was left to the sister. This is important because it shows that she was not deliberately excluded. I was told by a solicitor that if you want to leave someone out of a will (a relative) the way to do it is to leave a small sum - a very small sum will do - and/or explain why. That way, no one has any grounds for challenging the will. Especially as sister was not being supported by the deceased man.

HTH

Errata

margaretclare wrote: »

It looks to me (not a legal expert) as if the sister has no case.

(1) The will was properly drawn up, signed and witnessed. I assume the 2 witnesses signed it in each other's presence and in his presence? If that was the case, the fact that it was a will-writing company shouldn't matter.

(2) Some money was left to the sister. This is important because it shows that she was not deliberately excluded. I was told by a solicitor that if you want to leave someone out of a will (a relative) the way to do it is to leave a small sum - a very small sum will do - and/or explain why. That way, no one has any grounds for challenging the will. Especially as sister was not being supported by the deceased man.

HTH

It's rather more specific than 'a relative'. I know someone with so many relatives it would take half a dozen A4 sheets to list them all.