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edited 30 November -1 at 1:00AM in Deaths, Funerals & Probate
34 replies 9K views
freda11freda11 Forumite
236 posts
edited 30 November -1 at 1:00AM in Deaths, Funerals & Probate
So after waiting several months for the other side to seek counsel advice in a will dispute, they are trying to have overturned. We have received a copy of a psychiatric report they have obtained. If we don't agree to their offer then they say the next step is mediation. Our solicitor is getting a bit angry t us saying we should mediate and loose the attitude that 'its not what dad wanted'! So, some random physchiartrist giving his impression of whether dad had capacity, going on about how ill dad was and the meds he was taking could cause confusion, and the pain he was in. He is basically saying "on the balance of probabilities the info and medical notes he has seen is not sufficient to overturn this presumption of capacity at the time the deceased executed the will, given a presumption of capacity in y opinion it is more likely than not he had the capacity to execute the will. I understand that if the circumstances under which the will was drawn up are such as to excite suspicion, the
burden of proof of capacity may shift onto the propounder of the will to show the testator had capacity (capeto v good 2002). In this case there are good medical reasons to consider that the capacity of the testator might have been undermined by pain, anxiety depression and the pain of drugs. Just as I consider the notes do not contain sufficient info to establish that the testator lacked capacity neither do i think that they establish he had capacity"!!
He also thinks that as he was ill he would of felt under pressure and obliged to go give us the gifted sum!
We need some solid advice please, are we best letting it go to court or do we reluctantly try and mediate. This guy will not be happy until he gets it all, so mediation could be difficult!
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  • Savvy_SueSavvy_Sue Forumite
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    Previous thread here although there may be others.

    In general, I'd say you don't have a lot to lose by going to mediation, and refusing to go looks bad if you then end up in court.

    Certainly if you want any of your inheritance any time soon then it's time to mediate.

    By all means go with the attitude 'it's not what Dad wanted', and your evidence for this, and your evidence for his capacity when he made the will.

    You said he won't be happy until he gets it all - by what right would he get it all? He's not an only child, is he? Also if the will is overturned, then what does the situation revert to? If there's a previous will leaving it 'all' to him, it's obviously in his interests. If it goes back to intestacy, what would he get?

    If I remember rightly, the 'Dad' you refer to is your stepfather, who was still married to your mother at his death. Who else would inherit under intestacy?

    Without knowing what's at stake, it's hard to know what to say, but has your solicitor explained to you what he might be entitled to? Me, I think I'd make an offer, on the low side, to him and any of his siblings, just to be rid of them.
    Still knitting!
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  • freda11freda11 Forumite
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    Hi, our solicitor has not given us any indication as to what he is entitled to. Yes it is step dad, the contester is the deceased only blood child, so in theory yes he is the only child, he had 6 step children but none of the others had anything to do with him. I am the sole beneficiary in this will. In the previous will the blood son was the sole beneficiary. If it reverted back to the old will, blood son would get everything. We have decided we will mediate, and hopefully if he does not accept a reasonable happy medium then HE will have to take US to court.
  • Savvy_SueSavvy_Sue Forumite
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    Right, so the son has a psychiatrist's report saying Dad may or may not have had capacity when he made the will in your favour. What evidence have you got that Dad DID have capacity?
    Still knitting!
    Completed: TWO adult cardigans, 3 baby jumpers, 3 shawls, 1 sweat band, 3 pairs baby bootees, 2 sets of handwarmers, 1 Wise Man Knitivity figure + 1 sheep, 2 pairs socks, 3 balaclavas, multiple hats and poppies, 3 peony flowers, 4 butterflies ...
    Current projects: pink balaclava (for myself), seaman's hat, about to start another cardigan!
  • edited 6 August 2014 at 9:50AM
    freda11freda11 Forumite
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    edited 6 August 2014 at 9:50AM
    Thanks Sue, we have 6 witness statements which includes one from the nursing home manager and dads nurse and 4 from people who knew him well, all say he was of sound mind, a strong character who would not do anything he didn't want to do. the nurse said he was compes mentus until the morning he died. We have the solicitors Larke v Nugus statement which states the will was legal, the only thing they have picked out on that was that the solicitor made very few file notes and he should of followed the golden rule, the physiatric report states the soliciro didn't do this as he knew the doctor would of rendered the deceased without mental capacity! The report also dogged the doctor down who signed off dads POA, referring that the doctor musnt of understood how a POA works, it comes into effect as soon as its done. This was not the case, it was done at same time of will and dad was told it wouldn't come into force until dad couldn't manage his affairs which was around 7 month later, the doctor then came to dads and agreed that time was now, he reported dad was fully aware of the contents and the meaning of the POA, we have this in writing.
  • Savvy_SueSavvy_Sue Forumite
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    And will your solicitor write a letter to take to mediation to the effect that your evidence outweighs his, you believe you'd win in court but without prejudice you're prepared to offer £x?

    Without knowing the sums involved I don't know what I'd offer. There IS a risk you could go to court and lose the lot AND still have to pay your legal fees and his, plus it could drag on and on and on. I know I'd rather be done with the whole thing. Actually I might let him have the lot and pray Dad haunts him for the rest of his days, but I'm nice like that ...
    Still knitting!
    Completed: TWO adult cardigans, 3 baby jumpers, 3 shawls, 1 sweat band, 3 pairs baby bootees, 2 sets of handwarmers, 1 Wise Man Knitivity figure + 1 sheep, 2 pairs socks, 3 balaclavas, multiple hats and poppies, 3 peony flowers, 4 butterflies ...
    Current projects: pink balaclava (for myself), seaman's hat, about to start another cardigan!
  • freda11freda11 Forumite
    236 posts
    Savvy_Sue wrote: »
    And will your solicitor write a letter to take to mediation to the effect that your evidence outweighs his, you believe you'd win in court but without prejudice you're prepared to offer £x?

    Yes, just debating what to offer, and are we best offering now or wait until we get into mediation. We also have something up our sleeve, may not assist us in winning but will lets say 'shock the contester ;).
  • MojisolaMojisola Forumite
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    freda11 wrote: »
    We have received a copy of a psychiatric report they have obtained.

    So, some random physchiartrist giving his impression of whether dad had capacity, going on about how ill dad was and the meds he was taking could cause confusion, and the pain he was in. He is basically saying "on the balance of probabilities the info and medical notes he has seen is not sufficient to overturn this presumption of capacity at the time the deceased executed the will, given a presumption of capacity in y opinion it is more likely than not he had the capacity to execute the will. I understand that if the circumstances under which the will was drawn up are such as to excite suspicion, the burden of proof of capacity may shift onto the propounder of the will to show the testator had capacity (capeto v good 2002). In this case there are good medical reasons to consider that the capacity of the testator might have been undermined by pain, anxiety depression and the pain of drugs. Just as I consider the notes do not contain sufficient info to establish that the testator lacked capacity neither do i think that they establish he had capacity"!!
    freda11 wrote: »
    we have 6 witness statements which includes one from the nursing home manager and dads nurse and 4 from people who knew him well, all say he was of sound mind, a strong character who would not do anything he didn't want to do. the nurse said he was compes mentus until the morning he died. We have the solicitors Larke v Nugus statement which states the will was legal, the only thing they have picked out on that was that the solicitor made very few file notes and he should of followed the golden rule, the physiatric report states the soliciro didn't do this as he knew the doctor would of rendered the deceased without mental capacity! The report also dogged the doctor down who signed off dads POA, referring that the doctor musnt of understood how a POA works, it comes into effect as soon as its done. This was not the case, it was done at same time of will and dad was told it wouldn't come into force until dad couldn't manage his affairs which was around 7 month later, the doctor then came to dads and agreed that time was now, he reported dad was fully aware of the contents and the meaning of the POA, we have this in writing.

    So he's got one bland report from someone who never saw the deceased and you have all those reports from people who knew him and were in regular contact with him? His son's case isn't very strong, is it?

    Like Sue, I would go for a pragmatic approach - make clear his case isn't good but offer a settlement rather than go on paying legal and court costs.
  • freda11freda11 Forumite
    236 posts
    Thanks folks, we made an offer a few months back which their response was 'our client will not be accepting your derisory offer'. That tells me, make it higher and he will accept! Its what amount we offer, we are loathe to go 50/50. Roughly house is £160k and monies £50k. We offered 15% of each. Thinking about it though we don't want him to have anything to do with the house as whilst their is someone living in their, life tenancy, we would still have to have something to do with him if the house needed repairs, also he may be a pain in the bum when it comes to selling the property!
  • MojisolaMojisola Forumite
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    freda11 wrote: »
    Roughly house is £160k and monies £50k. We offered 15% of each. Thinking about it though we don't want him to have anything to do with the house as whilst their is someone living in their, life tenancy, we would still have to have something to do with him if the house needed repairs, also he may be a pain in the bum when it comes to selling the property!

    Don't do anything that means you are linked financially!

    Offer a sum of money and make a clean break of it.
  • freda11freda11 Forumite
    236 posts
    We have been discussing it and the most we will go to is £30k. Not bad considering he didn't want him to have a penny. There is also a letter son received on dads death explaining why he had left his son out of will. Funnily enough neither his sol or the psychiatrist has never mentioned it. We also have scribbled notes dad did with figures next to peoples name inc sons and scribbled out!
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