Advice on a potential contest

Malthusian

g67bbx wrote: »

From time to time gran did give my mother money, either to help out at home or to pay for car repairs etc, not to spend recklessly.

That was your gran's choice and none of your aunt's business. Even if your mother "manipulated" her into giving the money, your gran was still free not to be manipulated.

Gran did not give any money at all to the disinherited sister since she had been abroad (at least 19 years)

So she doesn't have a leg to stand on in a claim that she was financially dependent on gran.

There's no reason for stress at all in what you've posted. Your aunt could bring a claim against the estate. So could I, if I was willing to pay the legal costs, even though I've never met your gran in my life. But I would have about as much chance of winning as your aunt does.

konark

As the will was made in a solicitor's office it's pretty watertight, solicitors will not write wills for people they deem to have inadequate capacity to understand.

As others have noted, the main asset, the house, has been sold and gifted and is no longer part of the estate.

I'm afraid the other sister is whistling in the wind and her chance of success in altering the will is precisely zero.

g67bbx

Thank you for everyone's advice so far.

We have taken solicitor advice today. They seem to think that she is able to make a claim as she is a child of the deceased and could be entitled to up to approx 1/3rd of the remaining estate and he advised us to offer a settlement out of court!!!
He advised that it would be down the inheritance act route, but surely she would have to prove she was dependent on the deceased. Apparently as she is poor this counts?!?! However the deceased did not give her any money for over 19 years!
Do we need to see a different solicitor??

TW1234

There is no straight cut answer and that is why your solicitor has suggested making an offer.
The sister does not have to be currently or previously dependent but each case is examined on merit. This includes decisions about whether the deceased had any moral obligation to support the claimant, whether the claimant is not only "poor" but has some reason to have that poverty alleviated by the deceased, whether the claimant is able to alleviate their circumstances by employment if such were available and offerred, and many other arguable matters.
You (and your solicitor) will have to weigh up the likelyhood of a successful claim and the potential costs that you may incur in defending a claim against the cost of "buying off" the claimant.
It may seem unfair, but that is for others to judge.

Yorkshireman99

g67bbx wrote: »

Thank you for everyone's advice so far.

We have taken solicitor advice today. They seem to think that she is able to make a claim as she is a child of the deceased and could be entitled to up to approx 1/3rd of the remaining estate and he advised us to offer a settlement out of court!!!
He advised that it would be down the inheritance act route, but surely she would have to prove she was dependent on the deceased. Apparently as she is poor this counts?!?! However the deceased did not give her any money for over 19 years!
Do we need to see a different solicitor??

Did you ask a solicitor with proven expertise in thi field? The danger is searching for one who will tell you what you want to know rather than the reality! I still don't think she has any realistic chnace of success. IMHO she needs her bluff called.

TBagpuss

Is the solicitor one who specialises in contentious probate? If not, it may (depending on the vlaue of the estate and how strongly your mother feels about it) be worth seeing a specialist, or asking your solicitor to arrange for you to get Counsel's opinion, so you can have specialist advice tailored to the specific circumstances.

There are no guarantees, and court proceedings are time consuming and very expensive. Although your aunt might be ordered to pay costs if she lost, that's only any good if she has any assets. If not, then the costs will come out of the estate. It may be that, looking at it very pragmatically, it's more cost effective to make an offer than to fight, even if you have a good chance of winning.

If she does make a claim, the the court has to consider whether her mother failed to make reasonable provision for her. It is not necessary to establish that she was dependent on her mother, but if she can show she has genuine needs that is relevant, so if she is badly off, she is more likely to succeed than if she is financially secure.

It isn't a straightforward area of law and I would guess that the solicitor you saw suggested making an offer as it is the lower risk option - you can limit your costs and deal with the issue fairly quickly. (and making offers early on can help limit your risk for costs, if things don't settle and the case goes to court)

But for anyone to give roper advice they need the full facts, including things like the value of the estate, the exact instructions mum gave the solicitors when she made the will, whether she let letter of wishes about aunt and so on. Presumably the solicitor who gave you mum the advice about settling had more details than we do, and was in a better position to advise. But if you are unsure, suggest your mum asks whether they deal with a lot of contested cases and whether they would recommend getting Counsel( barrister)'s opinion / advice

p00hsticks

g67bbx wrote: »

Thank you for everyone's advice so far.

We have taken solicitor advice today. They seem to think that she is able to make a claim as she is a child of the deceased and could be entitled to up to approx 1/3rd of the remaining estate and he advised us to offer a settlement out of court!!!
He advised that it would be down the inheritance act route, but surely she would have to prove she was dependent on the deceased. Apparently as she is poor this counts?!?! However the deceased did not give her any money for over 19 years!
Do we need to see a different solicitor??

Can we just confirm that your gran lived in England or Wales ?

FreeBear

g67bbx wrote: »

We have taken solicitor advice today. They seem to think that she is able to make a claim as she is a child of the deceased and could be entitled to up to approx 1/3rd of the remaining estate and he advised us to offer a settlement out of court!!!

He advised that it would be down the inheritance act route, but surely she would have to prove she was dependent on the deceased. Apparently as she is poor this counts?!?! However the deceased did not give her any money for over 19 years!

Do we need to see a different solicitor??

I was in a similar position a couple of years back facing the (remote) possibility of an IA claim. None of the solicitors I spoke to suggested making an offer to settle, and I'm surprised that it has been suggested to you.

Stick to your guns and carry on with probate and ignore anything that doesn't bear an official court seal. Six months from the date probate is granted, the window for making a claim will have closed and you can finish winding up the estate.

The fact that she hasn't got any money will leave her severely disadvantaged in trying to pursue a claim - It is a very expensive undertaking with a limited chance of succeeding.

No need to consult another solicitor until such time as you receive any court papers. If any papers do turn up, find a solicitor experienced in dealing with contentious probate - Your average high street outfit is unlikely to be familiar with case law or be able to offer sound advice.

konark

Yes, don't start worrying until your aunt puts in a caveat or makes a claim on the estate, she is probably just bluffing. The fact that she is living abroad would suggest she is not destitute, and it will make it difficult for her to pursue the matter legally.

From your original post the aunt's main beef was that the will was invalid as your gran had had a stroke and lacked capacity and that you had spent her savings. If she takes this line she will not succeed. She never even mentioned the destitute angle.

With the house gone just how much is the estate now worth? It may not be enough to fight over.

thorsoak

If your grandmother's will states unequivocally that the second daughter is to receive nothing and gives an explanation in the will, then any contest of it would be unlikely to succeed.