Will contested and distribution

Robert_McGeddon

OP, have you got probate yet? That would be a pretty good indication as to the validity of the will.

GrumpyDil

I've been through similar. First question is was the latest will correctly executed and is therefore valid? If it was on what grounds is the will being contested?
In my case the will was technically valid on first look but one of the witnesses had doubts about my mother's capacity at the time and further investigation unearthed issues around how the solicitor who wrote the will was instructed. 

TBagpuss

OP, on what basis is your SIL challenging the will? Is she saying it was not properly drawn up / signed or is she suggesting that your Mother lacked capacity or that the change was made as a result of undue influence?

If it's the first, then if you were able to get probate it suggests that the will was technically valid (i.e. properly drawn up etc) if the second (capcity or undue influence) then that wouldn't stop probate being granted as of course the probate office wouldn't know that was in question. Was the will done by a solicitor? If so, they would normally keep notes of their conversations with your mother and should also be able to to confirm that she had capacity (i.e. understood what she was signing and it's effect) and probably that she was able to explain why she wanted to make the change. 

Pennylane

Any update OP?  Watching this with interest.

Manxman_in_exile

GrumpyDil said:...
In my case the will was technically valid on first look but one of the witnesses had doubts about my mother's capacity at the time and further investigation unearthed issues around how the solicitor who wrote the will was instructed. 

Just to satisfy my own curiosity, is it any business of a witness to raise doubts after the fact about testamentary capacity?  Surely their purpose is simply to witness the testator* signing their will - they aren't there to assess capacity are they?

I'd have thought if they had any doubts at all they should refuse to be a witness...

*My understanding is they don't even need to know or be able to identify the testator, let alone say if they had capacity or not.

Marcon

River11_2 said:

My sister-in-law and her 3 children are contesting the validity my mothers last will, which was made shortly before her death (I am the only surviving son) leaving her estate to me. I have offered equal cash sums to all my own children, my niece, nephews and sister-in-law.
Hypothetically should they be successful, I see the worse case scenario is we have to go back to a previous will, which just leaves a cash sum to my sister-in-law and equal cash sums to all grandchilden. Should this be the case, there is not enough cash left in the executors account to pay out everyone as per the previous will, but there is enough capital in the house value she has left. However I rented out the house recently for 12 months.
My question is, how would I pay everyone? Could it be from the rent income over time, Or would I have to raise the cash myself if I had the ability to do it.

I think you may be over-estimating the speed of our legal system! Depending on when this challenge was brought, you could find your tenants are in the final days of their tenancy, or indeed are long gone, before the outcome of any claim is decided.

Even if (and it sounds a pretty big 'if') you do have to revert to the previous will, if you are the sole executor (?are you), you don't have to cough up the cash immediately...you might find yourself wanting to go through the process of advertising in the Gazette and waiting quite a while for any possible claimants to come forward....

GrumpyDil

Manxman_in_exile said:

Just to satisfy my own curiosity, is it any business of a witness to raise doubts after the fact about testamentary capacity?  Surely their purpose is simply to witness the testator* signing their will - they aren't there to assess capacity are they?

I'd have thought if they had any doubts at all they should refuse to be a witness...

*My understanding is they don't even need to know or be able to identify the testator, let alone say if they had capacity or not.

It's a valid question.
The full details from recollection was that the probate registry were not 100% happy with the signature and wrote to the two witnesses to confirm that the will had been signed correctly in front of them and that my mother knew it was a will she was signing, which they did. But one of the witnesses contacted me as she felt that my mother knew she was signing a will but wasn't really aware of the details.
When we did some further digging into the circumstances we found other issues around the entire process which eventually led my sister to agreeing to revert to the previous will rather than taking the chance of losing in court (probably not helped by the fact that her legal insurers indicated they wouldn't cover any further legal costs on her side).
All in all not a pleasant situation and only one which I dug into as the witness was absolutely convinced the situation was not what my mother wanted. 

Hitting

Is it possible to have two different mirror wills, where the surviving spouse decides which will would be relevant to use?

Mojisola

Hitting said:

Is it possible to have two different mirror wills, where the surviving spouse decides which will would be relevant to use?

Not officially because whichever will was signed last would be the valid will but that wouldn't stop the testator destroying the later will if they wanted the previous will to stand.

There is nothing stopping the survivor writing a completely different will if they don't want to go ahead with the mirror will.

The now rarely-used joint wills couldn't be changed after the death of the first person but a mirror will can be changed at any time.

Hitting

Mojisola said:

Hitting said:

Is it possible to have two different mirror wills, where the surviving spouse decides which will would be relevant to use?

Not officially because whichever will was signed last would be the valid will but that wouldn't stop the testator destroying the later will if they wanted the previous will to stand.

There is nothing stopping the survivor writing a completely different will if they don't want to go ahead with the mirror will.

The now rarely-used joint wills couldn't be changed after the death of the first person but a mirror will can be changed at any time.

Are you saying that a surviving spouse can write a new Will although the deceased was instrumental in writing the original mirror will?....thus changing deceased wishes!