Challenging Will

Manxman_in_exile

marleneb1 said:

Mojisola said:

marleneb1 said:

She will have to review the wording of both Wills but I'm not sure what precise wording sets one apart from the other - is thete crucially a specific clause that incorporates this wording? My father was certainly of the opinion that the Wills could not be changed or revoked.

Mutual wills will have a clause that confirms that both parties agree to be bound by the terms of the wills and accept that the survivor will not be able to revoke that will and make a new one.

This is what I'm trying to establish  - xylophone's response above suggests this isn't necessarily the case. Have you seen an example of this clause so that I can actually see if it's in the Wills?

Did you read the links I provided in your earlier thread?  The first one was an example where a court found mutual wills to exist despite the lack of any express declaration that the wills were mutual.  (The second link was a link to the actual judgment in that case).  The third link was an example of the court finding that the wills at issue were not mutual.

In the first case the judge (rather surprisingly I suspect) based their decision on the conduct of the parties to the two wills and their converstaions with family members rather than on the wording of the wills itself.  I suspect many lawyers might consider it a "strange" judgment as it is very rare these days for a court to find that contested wills were mutual.  The law generally does not like the idea of testators being restricted in how they bequeath their property.

If you are engaging a lawyer let them deal with the aguments for and against the wills being mutual.  If they are the same solicitor who originally drew up the wills (and you say they are) it ought to be easy for them to establish that the wills were mutual.  They will have kept evidence to show that that was the intention of the testator and testatrix.


Mojisola said:

marleneb1 said:

She will have to review the wording of both Wills but I'm not sure what precise wording sets one apart from the other - is thete crucially a specific clause that incorporates this wording? My father was certainly of the opinion that the Wills could not be changed or revoked.

Mutual wills will have a clause that confirms that both parties agree to be bound by the terms of the wills and accept that the survivor will not be able to revoke that will and make a new one.

Not according to the decision I linked to above - though I suspect that may have been a one-off decision

Stubod

..ref using a "free will" writing service. This is fairly common practice. and is regularly advertised as an option. ie as long as your will is fairly simple, then you can use one of the (many) participating solicitors to write you a will for free assuming your are leaving part of your estate to any of the participating charities. (We used this service a few years ago, no pressure involved, it just seemed a good option if you have no dependents, or choose to leave your "wealth" to charities.

To be honest I think you would be wasting your time contesting this, (particularly as any charities involved will have their own legal eagles ready and waiting?)

MovingForwards

marleneb1 said:

MovingForwards said:

Mirror wills are not binding on the survivor, they can and do get updated when the first person dies. Read your other thread again.

Thanks for your input. I know this is a possibility so no need to revisit my previous post. In fact, I was asking a completely different question, ie has anyone any knowledge or experience of people who advertise their services in return for charitable donations? I've not come across it before.

Yes, it's a very popular thing as others have confirmed. It's also for 'simple' wills eg everything to the survivor or to the kids, grandkids or family / charity.

Phones used to ring constantly during free wills offers, appointments were back to back to keep up with demand. Not all firms participate.

There's also no obligation to donate anything to charity in return for them paying for the will(s) to be drawn up. Some people wouldn't leave anything, some would leave a percentage others would leave a fixed amount.

Leaving money to charities are a great IHT planning tool.

If you obtain a copy of your dad's will, provide the clause you think is a mutual will clause, you will get told whether it is or isn't. I've never drafted one with it in.

marleneb1

Manxman_in_exile said:

marleneb1 said:

Mojisola said:

marleneb1 said:

She will have to review the wording of both Wills but I'm not sure what precise wording sets one apart from the other - is thete crucially a specific clause that incorporates this wording? My father was certainly of the opinion that the Wills could not be changed or revoked.

Mutual wills will have a clause that confirms that both parties agree to be bound by the terms of the wills and accept that the survivor will not be able to revoke that will and make a new one.

This is what I'm trying to establish  - xylophone's response above suggests this isn't necessarily the case. Have you seen an example of this clause so that I can actually see if it's in the Wills?

Did you read the links I provided in your earlier thread?  The first one was an example where a court found mutual wills to exist despite the lack of any express declaration that the wills were mutual.  (The second link was a link to the actual judgment in that case).  The third link was an example of the court finding that the wills at issue were not mutual.

In the first case the judge (rather surprisingly I suspect) based their decision on the conduct of the parties to the two wills and their converstaions with family members rather than on the wording of the wills itself.  I suspect many lawyers might consider it a "strange" judgment as it is very rare these days for a court to find that contested wills were mutual.  The law generally does not like the idea of testators being restricted in how they bequeath their property.

If you are engaging a lawyer let them deal with the aguments for and against the wills being mutual.  If they are the same solicitor who originally drew up the wills (and you say they are) it ought to be easy for them to establish that the wills were mutual.  They will have kept evidence to show that that was the intention of the testator and testatrix.


Mojisola said:

marleneb1 said:

She will have to review the wording of both Wills but I'm not sure what precise wording sets one apart from the other - is thete crucially a specific clause that incorporates this wording? My father was certainly of the opinion that the Wills could not be changed or revoked.

Mutual wills will have a clause that confirms that both parties agree to be bound by the terms of the wills and accept that the survivor will not be able to revoke that will and make a new one.

Not according to the decision I linked to above - though I suspect that may have been a one-off decision

Yes I did read the links you provided and thank you for that and your time, which is much appreciated.  We know this is a long shot but there have been so many other issues surrounding the death of my stepmother, with whom I was on very good and affectionate terms, that have caused further distress, engineered and exacerbated by her Executor who is now the main beneficiary.  The solicitor will establish whether the original Wills were indeed mutual and therefore form a binding contract.  My father certainly believed this to be the case and wrote to me after having the Wills drawn up that this is what had been jointly agreed.  I'm not sure what further evidence can be ascertained to establish their joint intentions other than a clause or agreement they both participated in.  Why can't the law be more straightforward, especially on issues like this?  Makes a bad situation much worse.

Manxman_in_exile

marleneb1 said:

Manxman_in_exile said:

marleneb1 said:

Mojisola said:

marleneb1 said:

She will have to review the wording of both Wills but I'm not sure what precise wording sets one apart from the other - is thete crucially a specific clause that incorporates this wording? My father was certainly of the opinion that the Wills could not be changed or revoked.

Mutual wills will have a clause that confirms that both parties agree to be bound by the terms of the wills and accept that the survivor will not be able to revoke that will and make a new one.

This is what I'm trying to establish  - xylophone's response above suggests this isn't necessarily the case. Have you seen an example of this clause so that I can actually see if it's in the Wills?

Did you read the links I provided in your earlier thread?  The first one was an example where a court found mutual wills to exist despite the lack of any express declaration that the wills were mutual.  (The second link was a link to the actual judgment in that case).  The third link was an example of the court finding that the wills at issue were not mutual.

In the first case the judge (rather surprisingly I suspect) based their decision on the conduct of the parties to the two wills and their converstaions with family members rather than on the wording of the wills itself.  I suspect many lawyers might consider it a "strange" judgment as it is very rare these days for a court to find that contested wills were mutual.  The law generally does not like the idea of testators being restricted in how they bequeath their property.

If you are engaging a lawyer let them deal with the aguments for and against the wills being mutual.  If they are the same solicitor who originally drew up the wills (and you say they are) it ought to be easy for them to establish that the wills were mutual.  They will have kept evidence to show that that was the intention of the testator and testatrix.


Mojisola said:

marleneb1 said:

She will have to review the wording of both Wills but I'm not sure what precise wording sets one apart from the other - is thete crucially a specific clause that incorporates this wording? My father was certainly of the opinion that the Wills could not be changed or revoked.

Mutual wills will have a clause that confirms that both parties agree to be bound by the terms of the wills and accept that the survivor will not be able to revoke that will and make a new one.

Not according to the decision I linked to above - though I suspect that may have been a one-off decision

...  My father certainly believed this to be the case and wrote to me after having the Wills drawn up that this is what had been jointly agreed.  ....

And have you kept a copy of that letter?

marleneb1

Manxman_in_exile said:

marleneb1 said:

Manxman_in_exile said:

marleneb1 said:

Mojisola said:

marleneb1 said:

She will have to review the wording of both Wills but I'm not sure what precise wording sets one apart from the other - is thete crucially a specific clause that incorporates this wording? My father was certainly of the opinion that the Wills could not be changed or revoked.

Mutual wills will have a clause that confirms that both parties agree to be bound by the terms of the wills and accept that the survivor will not be able to revoke that will and make a new one.

This is what I'm trying to establish  - xylophone's response above suggests this isn't necessarily the case. Have you seen an example of this clause so that I can actually see if it's in the Wills?

Did you read the links I provided in your earlier thread?  The first one was an example where a court found mutual wills to exist despite the lack of any express declaration that the wills were mutual.  (The second link was a link to the actual judgment in that case).  The third link was an example of the court finding that the wills at issue were not mutual.

In the first case the judge (rather surprisingly I suspect) based their decision on the conduct of the parties to the two wills and their converstaions with family members rather than on the wording of the wills itself.  I suspect many lawyers might consider it a "strange" judgment as it is very rare these days for a court to find that contested wills were mutual.  The law generally does not like the idea of testators being restricted in how they bequeath their property.

If you are engaging a lawyer let them deal with the aguments for and against the wills being mutual.  If they are the same solicitor who originally drew up the wills (and you say they are) it ought to be easy for them to establish that the wills were mutual.  They will have kept evidence to show that that was the intention of the testator and testatrix.


Mojisola said:

marleneb1 said:

She will have to review the wording of both Wills but I'm not sure what precise wording sets one apart from the other - is thete crucially a specific clause that incorporates this wording? My father was certainly of the opinion that the Wills could not be changed or revoked.

Mutual wills will have a clause that confirms that both parties agree to be bound by the terms of the wills and accept that the survivor will not be able to revoke that will and make a new one.

Not according to the decision I linked to above - though I suspect that may have been a one-off decision

...  My father certainly believed this to be the case and wrote to me after having the Wills drawn up that this is what had been jointly agreed.  ....

And have you kept a copy of that letter?

Yes - it's an email sent to all his children informing us of what he and my stepmother had "decided" were their wishes when drawing up the 'mirror Wills". Two of my siblings have since died, one of whom was named as his Executor. No provision was made in the Will for replacement of a deceased Executor. My father actually told us that he had 'paid a lot of money' to ensure that the Wills couldn't be changed and when my stepmother asked the solicitor who drew up the Wills if she could remove my brother as a beneficiary a couple of years after my father's death, she was told she could not change the Will. She told both me and my sister, who was Executor, this. I am sure the solicitor will have a record of the advice they gave to her. It seems clear to me that she chose to draw up her new Will through someone she found on the Internet rather than go back to the original solicitor because of the advice they had already given her. 

xylophone

Yes - it's an email sent to all his children informing us of what he and my stepmother had "decided" were their wishes when drawing up the 'mirror Wills". Two of my siblings have since died, one of whom was named as his Executor. No provision was made in the Will for replacement of a deceased Executor. My father actually told us that he had 'paid a lot of money' to ensure that the Wills couldn't be changed and when my stepmother asked the solicitor who drew up the Wills if she could remove my brother as a beneficiary a couple of years after my father's death, she was told she could not change the Will. She told both me and my sister, who was Executor, this. I am sure the solicitor will have a record of the advice they gave to her. 

Did you see the link here

https://forums.moneysavingexpert.com/discussion/comment/78413925/#Comment_78413925

Has your solicitor entered a caveat?

https://www.gov.uk/stop-probate-application

marleneb1

xylophone said:

Yes - it's an email sent to all his children informing us of what he and my stepmother had "decided" were their wishes when drawing up the 'mirror Wills". Two of my siblings have since died, one of whom was named as his Executor. No provision was made in the Will for replacement of a deceased Executor. My father actually told us that he had 'paid a lot of money' to ensure that the Wills couldn't be changed and when my stepmother asked the solicitor who drew up the Wills if she could remove my brother as a beneficiary a couple of years after my father's death, she was told she could not change the Will. She told both me and my sister, who was Executor, this. I am sure the solicitor will have a record of the advice they gave to her. 

Did you see the link here

https://forums.moneysavingexpert.com/discussion/comment/78413925/#Comment_78413925

Has your solicitor entered a caveat?

https://www.gov.uk/stop-probate-application

Yes I read the link you provided thank you - interesting point about looking to external evidence to support the case.

I entered a Caveat in early April to stop probate going through because I was being denied sight of the new Will by my stepmother's niece. Only now when I have written to her solicitor to say I am about to commence legal proceedings has a copy of the Will been furnished to me - yesterday, actually.