When the time comes, do I contest a Will? Fraud?

cici71

I have an awkward relationship with my sibling. We text only and only just civil. My parents owned their house as tenants in common. My father passed away so his 50% is held in trust. Unbeknown to my sibling, when the Will was made public I paid to view it out of curiosity as the relationship with my parents was not great. I did nothing wrong, I just wasn't the perfect daughter they hoped for I guess. I have opinions and they didn't like them. My father left 50% to my sibling and the remaining 50% has been split 5 ways - me 10% and then my siblings 2 children and my 2 children the other 10%'s. Fair enough, is that what he wanted to do. However, my mother is alive but in a home and will never return to the family house. This is rented out to pay for care home fees. The house is worth about 500k. My sibling is the power of attorney and deals with everything as he was the apple of my fathers eye. My mother has not had capacity for about 5-6 yrs. She was at home with carers visiting twice a day up until my father passed away. I am REALLY curious about her will and wondered if maybe her half was the usual 50/50. In a text convo, I was told their Wills are the same. My sibling as I said doesn't know I have viewed my fathers Will and v aware I'm only it in minimally. My Dads will was dated 2014. I know he had a Will before then. Maybe this was when he changed it to Tenants in a common as he knew my mum would go to a home and wanted to protect his half. I have discovered that my Mums Will is dated 2013. My Mum did not have capacity to be able to sign a Will let alone voice her wishes or concerns. I have discovered that her Will is mirrored to my fathers so I'm also 10% of her half. My mother and I did get on better so this surprises me. As they own it as Tenants in common and my Dad had to update his maybe to reflect his half (?) - how do I know he changed her wishes from 50/50. Old Wills are revoked but obviously if I knew I was only in it minimally then fine, but I am confused how my Mum can have an updated Will when in 2013 she was unable to write or speak properly. The witnesses are likely to be same as my fathers and be the elderly neighbours who would just sign it as they've known my parents for 40 odd years. So they wouldn't question my Mum doesn't have capacity.
When the time comes, shall I ask for medical records to prove my mother didn't have capacity and therefore contest it? As her daughter, would I then get 50% of her half if records proved she wasn't fit to sign a Will ? Or was my Dad within his rights to sort her Will. This is very long and detailed but it's to give the right picture I hope. Thank you .

Savvy_Sue

Leaving aside whether or not your mother had capacity to change her will in 2013 - and not being able to speak or write isn't necessarily enough - there are two questions.

1. Do you want to have any future relationship with your brother? If yes, do not contest the will, because that will scupper all hopes of any future relationship.

2. Do you hope to receive your 10% and have your children receive theirs? If yes, do not contest the will, because that will be expensive. Very expensive. In fact unless you have significant funds, it's unlikely you'd find anyone willing to take the case on.

And remember, if in 2013 your mother could understand the content of a new will, and if at that stage she could communicate her understanding, then the will may be valid. Also remember that even if she did NOT have capacity 24/7, the question is whether she had it when she signed (or made her mark) on the will - if for example she was more 'with it' in the mornings than at other times.

Also remember that if the will was professionally drawn up, then it's likely the professional involved would have ensured that your mum did have capacity.

Jenniefour

Hard to detect any fraud, and as Savvy_Sue says, as long as your mother's solicitor was satisfied your mother understood what she wanted in the will it cannot be challenged on lack of capacity. Solicitors who draw up wills are very careful indeed about this, and for good reason.

badmemory

Just curious but what if this was a DIY will? Would we be looking at this differently?

konark

You say you're in your dad's will 'minimally', but if my maths is correct you're in it to the tune of 25 large which in my book is hardly minimal.

You guess that the ageing neighbours were the witnesses of the will, that sort of implies it's a home-made job. Without a solicitor it does begin to look a bit less pukka.

You'll need pretty cast iron evidence that your mum was non-compus mentis in 2013, medical records may be difficult to obtain or quite vague about her mental capacity. My mother died of dementia but it would be difficult for me to pick an exact date when, even in my non-medical opinion, she permanently lacked capacity to understand..

If you contested the will would your brother fight it? or just say 'Yeah mum probably didn't know what she was signing we'll go for 50/50' (intestacy rules)

Does your mum's will mention a trust?, if it does and it is dated from a time when her and your father were still joint tenants it looks a bit fishy. Strange for mirror wills not to be drawn up at same time.

cici71

Thanks for all your replies.
I did my own Will through Which. I did not have a solicitor personally access my capacity. Many Wills are done online now. However, I do think my Dad would have used a solicitor. Therefore, I'm guessing due to the cost & quite rightly, not having a specific date of capacity being lost, I had best not to contest it, it seems.
Konark - you mentioned 25k was minimal. Well if my Dad had no intervention with my mothers Will, i would have been getting 125k just from her half. This to me is rather significant. My father chose for me not to receive his 125k and that's fair enough. My sibling and I will both be looking after our own children when that time comes. Both our ex partners also own property but both sets of children will benefit from 2 properties when the time comes. I just felt it unfair that I won get that life changing amount due to a Will being drawn up when my mother did not have capacity to sanction that choice.

TBagpuss

If a solicitor was invlved then they would have had to consider whether your mum had capacity at the time. Not being able to speak properly would not mean your mum didn't have capacity, if she was able to make her wishes known, for example, answering questions etc.

However, if you do think that there is areal possibility that the will did not reflect her true intentions or that she did not have capacity you could request details from the solicitor, after her death. they would normally keep records of their meting with her, and if there was any doubt over her capacity these would usually be detailed and include an explanation of why they were satisfied that she had capacity.

If the will was drawn up by a will-writer or as a DIY basis then obviously there is less likely to be good evidence about whether or not she had capacity, but to challenge it you would need evidence that she did *not* have capacity.

You mention that your brother has POA for her - when was that registered, do you know? What kind is it?

Although people can have varying levels of capacity, evidence that your brother had been acting as attorney under a Health and Welfare PoA, on a date before the will was signed, would certainly raise questions about whether she had capacity to make the will (because that type of POA only allows the attorney to make decisions once someone has lost capacity)

If a court decided that she did not have capacity and that the will was not valid, then any earlier will would normally then be effective (as the par of the new will, revoking any previous will, would not have taken effect) If there was no previous will then her estate would be distributed under the intestacy rules which would normally result in the estate being divided equally between her children.

As others have said, contesting a will is difficult and expensive, so if you do consider it,make sure you get proper advice from a solicitor specialising in contentious probate, before you decide whether to go ahead.

Jenniefour

konark wrote: »

You guess that the ageing neighbours were the witnesses of the will, that sort of implies it's a home-made job. With respect, it doesn't. Just because someone is ageing it doesn't mean they have lost their marbles. Witnesses are not verifying/agreeing/approving the contents of the will, it's got nothing at all to do with them and they often don't know what's in the will. They are simply verifying that they saw the author of the will make some marks with a pen on the document. Solicitors will attend at home if they are asked (and they often offer for older clients anyway, regardless of whether clients can get out and about), it's a normal part of their work, and that is why trusted neighbours may be asked to witness the signature(s).

It's Without a solicitor it does begin to look a bit less pukka. It is very unlikely the wills were done without a solicitor as OP would have seen that when she viewed her father's will online. What she saw would have been an exact copy of her deceased father's will, which had already satisfied the stringent requirements for probate. She can easily look again if she's not sure.

You'll need pretty cast iron evidence that your mum was non-compus mentis in 2013, medical records may be difficult to obtain or quite vague about her mental capacity. Yes, that's right. The solicitor will have made proper detailed notes of all the pertinent points/issues in the consultation with OP's parents, including ascertaining that they both had capacity. My mother died of dementia but it would be difficult for me to pick an exact date when, even in my non-medical opinion, she permanently lacked capacity to understand.. A solicitor, if there's uncertainty, can request a medically qualified person to attend and assess capacity.

If you contested the will would your brother fight it? or just say 'Yeah mum probably didn't know what she was signing we'll go for 50/50' (intestacy rules) Those who contest wills need very deep pockets, and need to be honest with themselves about exactly why they are trying to contest the will. Simply not liking what's in the will, in the absence of any possible other grounds, is throwing money away. OP's brother is perfectly entitled to give her some of his own inheritance when the time comes, as long as the inheritance for the grandchildren is not altered in any way.

Does your mum's will mention a trust?, if it does and it is dated from a time when her and your father were still joint tenants it looks a bit fishy. Strange for mirror wills not to be drawn up at same time. They would have been. The difficulty for OP is that, for reasons she's explained, she will not readily be able to access all the information/documents that would have provided clarity.

At least OP has some time to come to terms with what is most likely when her mother passes away, even though it is not what she expected/wanted.

Jenniefour

TBagpuss wrote: »

However, if you do think that there is areal possibility that the will did not reflect her true intentions or that she did not have capacity you could request details from the solicitor, after her death. they would normally keep records of their meting with her, and if there was any doubt over her capacity these would usually be detailed and include an explanation of why they were satisfied that she had capacity.

I agree with all you've said about solicitors making proper notes but I wasn't aware that a beneficiary could simply go to the solicitor who drew up the will and be given access to the notes after the death. The solicitor who drew up the will is acting on behalf of his/her client, and not on behalf of any beneficiaries. So I understood they would not supply the notes, unless legal action requires them to, as they would be breaking the confidentiality of the client/solicitor relationship. My understanding is that the duty of confidentiality continues after death, as it does in some other professions, unless there are circumstances where is a clear legal requirement/good reason, to disclose. I might be wrong though!

cici71

Jenniefour - thank you very much. You summed it up really at the end. I will have come to terms with it when the time comes. It's not what I expected and it does seem that it's going to be a very hard job to prove plus very expensive. I get paid tomorrow and I think my bank balance today allows me a coffee from Costa today!! So I'm not well off one bit. So certainly can't afford to contest it or afford to lose the case. I guess I should just be thankful for what I do get.
Thank you all for your advice. Really really helpful.

Jenniefour

cici71. I'm glad you are making a bit more sense of all this, it's a very complex set of circumstances.

It might help you to know I can't detect any underhand skullduggery going on in what you described, this is more to do with the some of the long standing difficulties in the family relationships.

Just to add - providing your brother is able to continue covering the costs of your mothers care bill without needing to sell the house, the fact that your parents have made provision for their grandchildren will help you anyway. Your children will have some money of their own and less likely to need to be tipping up their mother's purse - well, it will be their turn to buy your Costa coffee!