Gaining Probate. Will being contested!

sammyhobbs15

Hi can anyone help me with some legal advice. My mum sadly died of a brain tumor on the 20th of December 2015. Early in December she made a will to put me and my sister as executors of her will and half of the house which her and my dad owned would then go to us. She took 2 appointments to make this will as on the first appointment my father was speaking for her and we ending up rowing in the solicitors office as mum was unaware as what was going on because he was confusing her. On this appointment we were made to leave the room. Mum discussed the will but hadn't signed anything. She then went back alone a few days later in which she filled the will as she wished which made me and my sister executors. After her passing we filled for probate. The probate was then stopped by a caveat. We have just sent off a warning letter for the caveat. My dad is contesting the will and saying that my mum wasn't of sound mind due to her brain cancer. Can he do this? Surely if the solicitor did not think she was of a sound mind then they wouldn't have made the will. We are fighting for this as my dad was a terrible husband and cheated on my mum and she even started divorce procedings a few months prior to her finding out she had cancer but she stopped them because of the cancer. Can anyone help before I take matters to court? Thanks. Sam

Yorkshireman99

sammyhobbs15 wrote: »

Hi can anyone help me with some legal advice. My mum sadly died of a brain tumor on the 20th of December 2015. Early in December she made a will to put me and my sister as executors of her will and half of the house which her and my dad owned would then go to us. She took 2 appointments to make this will as on the first appointment my father was speaking for her and we ending up rowing in the solicitors office as mum was unaware as what was going on because he was confusing her. On this appointment we were made to leave the room. Mum discussed the will but hadn't signed anything. She then went back alone a few days later in which she filled the will as she wished which made me and my sister executors. After her passing we filled for probate. The probate was then stopped by a caveat. We have just sent off a warning letter for the caveat. My dad is contesting the will and saying that my mum wasn't of sound mind due to her brain cancer. Can he do this? Surely if the solicitor did not think she was of a sound mind then they wouldn't have made the will. We are fighting for this as my dad was a terrible husband and cheated on my mum and she even started divorce procedings a few months prior to her finding out she had cancer but she stopped them because of the cancer. Can anyone help before I take matters to court? Thanks. Sam

If he wants to contest the will then he will have to prove that your mother was not capable of making a will. He will have an uphill struggle. Go ahead and challenge the caveat. If he goes to a solicitor he will probably be asked to put money up front. That make bring him to his senses.

sammyhobbs15

Yes we have received a letter from his solicitor so they must think that he has a case if they are following it up. She was 100% of sound mind. How could he prove otherwise? Surely that's something the solicitor had to ensure when she made the will? Thanks for your help.
Sam

Yorkshireman99

sammyhobbs15 wrote: »

Yes we have received a letter from his solicitor so they must think that he has a case if they are following it up. She was 100% of sound mind. How could he prove otherwise? Surely that's something the solicitor had to ensure when she made the will? Thanks for your help.
Sam

Quite. Call his bluff.

Mojisola

sammyhobbs15 wrote: »

Yes we have received a letter from his solicitor so they must think that he has a case if they are following it up.

His solicitors may have advised him that he's unlikely to win but, if he still wanted the letter written, they will do so and charge him for it and for all future correspondence and meetings.

The solicitor who prepared your mother's will should be willing to give evidence that, in their judgment, your mother was capable of understanding what she was doing and of making her own decisions - they wouldn't have gone ahead with the will if they didn't believe that.

TBagpuss

Speak to the solicitor who prepared the will.

Do you know which solicitors she saw when she was planning to divorce him? That might also be relevant - evidence that the relationship was difficult and that she had taken steps to separate from him, which helps explain why she would chose to make a new will and exclude him / reduce his involvement.

TBagpuss

Did she tell the solicitor about the tumour?
I solicitor will normally keep good records of the instructions and advice provided but if they are aware that someone has a health condition which might affect their judgment they will be particularly careful, and if they had any doubts about her capacity they would have ask ed her to agree to a medical assessment of her capacity.

sammyhobbs15

Yes I have all the paperwork regarding the divorce proceedings from the solicitor which mum was using and the solicitor who done the will was aware of the tumour because it was through a cancer research website which they we found her. She and her company will be the company we will use if we have to go to court. She has already told us that she had no issues with mums mental health and the will is fine and she has no reason to doubt that. Im just a bit concerned we will go to court and he will win. He doesn't deserve to win because of the heartache he caused my whole family for years. It's terrible to have your own father turn this way. Everyone we know is ashamed and shocked with his behaviour. He had other women staying over at the house my parents owned together just 2 weeks after my mums passing but claimed to be the loving caring husband to everyone previously.

Mojisola

sammyhobbs15 wrote: »

Yes I have all the paperwork regarding the divorce proceedings from the solicitor which mum was using and the solicitor who done the will was aware of the tumour because it was through a cancer research website which they we found her. She and her company will be the company we will use if we have to go to court. She has already told us that she had no issues with mums mental health and the will is fine and she has no reason to doubt that.

Im just a bit concerned we will go to court and he will win. He doesn't deserve to win because of the heartache he caused my whole family for years.

I can understand your worries but trust your solicitor - it's her reputation at stake as well as the validity of the will so she has a vested interest in making sure you win.

antrobus

sammyhobbs15 wrote: »

... Can he do this? ...

Yes. Anyone can challenge a will if they feel so inclined.

Reassure yourself with Walker and another v Badmin and others [2014] All ER (D) 258.
The testatrix in Walker v Badmin was 53 years old and suffering from a brain tumour. In her will, she left her property on a life interest trust for her partner, and divided her residuary estate into two shares, one of which passed to her partner and the other to her two daughters. She died five weeks later and her daughters challenged her will on several grounds, including lack of testamentary capacity. The case attracted some press attention as the estate’s assets were fairly considerable, comprising a farm worth over £1million. The testatrix was very recently divorced from her estranged husband and had been living with her 35 year old partner, Mr Badmin, for two years.

It was found that the testatrix did have capacity to make a will, and the will was upheld.

http://www.hughjames.com/news/comment/2014/12/high-court-confirms-banks-v-goodfellows-test-mental-capacity-making-will/

paddy's_mum

sammyhobbs15 wrote: »

at the house my parents owned together

I suggest that before you go spending money on solicitor's fees, you check out exactly how your parents owned the house. If it was as joint tenants, then it was not your mother's to leave elsewhere. If held as tenants in common, that is a different scenario.

A quick google should throw up information on the different types of ownership and an application to the Land Registry should confirm the details of ownership.

I'm sorry for the loss of your mother but also for the additional misery a selfish husband/father is causing for you all.