Getting nowhere fast

xylophone

To summarise the situation.

The OP's late father and late stepmother  made their  wills in 2010, using the services of the solicitor to whom the OP refers above.

The wills in question had exactly the same provisions, presumably providing first for the survivor of the couple but ultimately leaving the estate to five beneficiaries, two of whom were the OP and her brother.



The OP's late father died in 2012. The OP believed  the wills (above) were mutual so that she and the other beneficiaries would ultimately inherit according to the terms of her late father's will.

It would appear that a few years after Father's death, stepmother decided that she wanted to change  her will so as to disinherit the OP's brother.

She consulted the solicitor who drafted the wills and apparently was told that her will could not be changed.

This is what I mean. I believe the Wills were mutual when they were made as my father told me they couldn't be changed. I recall my stepmother asking the solicitor who drew up the Wills if she could make a change a few years following my father's death  ie to basically disinherit my brother as she doesn't like him, and she told us the solicitor had said she could not do that. 

She drafted the original mirror Wills and is confident they constitute a contract.

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. 

Regarding when a mirror will becomes a mutual will, below seem relevant.

https://www.clarkewillmott.com/news/mutual-wills-should-you-have-them/#:~:text=Mutual Wills are Wills drawn,Will after the other dies

https://www.brewin.co.uk/insights/mirror-wills-and-mutual-wills

Instead of approaching the solicitor again, the stepmother decided to draw up a new will through another party.

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. 

The OP now wants the solicitor who drafted the original will to confirm that it was mutual.

marleneb1

naedanger said:

marleneb1 said:

Thank you all for your responses and your time. Unfortunately I am no clearer! Can I just ask 2 specific questions?
1. My solicitor's firm drew up the original mirror Wills in 2010. They were not engaged by the Executor named in the new Will for probate. Is it a fact that they are not able to consult their own file notes without the Executor's permission?
2. What differentiates a mirror Will from a mutual Will? Is there a specific clause that makes it binding - surely there must be some specific form of wording making it easy to differentiate one from the other? If there is, what is the point of a mirror Will? 
Thank you so much for your continued patience.

My layman's understanding:
1. The solicitor and their firm can consult their own files whenever they want. However they cannot communicate any information in it to an external party without their client's permission or implied permission. As their client is now dead they will consider their client's executor to be their client.
2. Regarding the difference between mutual and mirror wills see the following:
https://www.clarionsolicitors.com/articles/mutual-wills-explained
So while mutual wills do not need explicit wording to say they cannot in the future be revoked or amended without the other party's consent there needs to be very strong evidence that this is what the parties wished. 

Thank you for this and for the link - very interesting. With regards to your point 1 - I don't see how they can view the Executor as their client when she has instructed a different solicitor to act on her behalf. This is what I mean about getting nowhere fast - it seems that not only the Executor but also the legal profession put obstacles in our path at every turn

naedanger

marleneb1 said:

naedanger said:

marleneb1 said:

Thank you all for your responses and your time. Unfortunately I am no clearer! Can I just ask 2 specific questions?
1. My solicitor's firm drew up the original mirror Wills in 2010. They were not engaged by the Executor named in the new Will for probate. Is it a fact that they are not able to consult their own file notes without the Executor's permission?
2. What differentiates a mirror Will from a mutual Will? Is there a specific clause that makes it binding - surely there must be some specific form of wording making it easy to differentiate one from the other? If there is, what is the point of a mirror Will? 
Thank you so much for your continued patience.

My layman's understanding:
1. The solicitor and their firm can consult their own files whenever they want. However they cannot communicate any information in it to an external party without their client's permission or implied permission. As their client is now dead they will consider their client's executor to be their client.
2. Regarding the difference between mutual and mirror wills see the following:
https://www.clarionsolicitors.com/articles/mutual-wills-explained
So while mutual wills do not need explicit wording to say they cannot in the future be revoked or amended without the other party's consent there needs to be very strong evidence that this is what the parties wished. 

Thank you for this and for the link - very interesting. With regards to your point 1 - I don't see how they can view the Executor as their client when she has instructed a different solicitor to act on her behalf. This is what I mean about getting nowhere fast - it seems that not only the Executor but also the legal profession put obstacles in our path at every turn

The solicitor's client was your late step-mother. The fact your late step-mother subsequently appointed another solicitor does not change the fact that the first solicitor is still bound by her professional responsibilities to her ex-client (your step-mother). In particular she is still bound to maintain client confidentiality. The only person the first solicitor can release her ex-client's private information to is her ex-client's executor even if that executor is not a client in their own right.

If the solicitor believes there is evidence in her files that shows the first Will was a mutual Will and therefore the valid Will then she should be behaving quite differently. She should then not consider the executor of the second Will to be the rightful executor and instead should be making efforts to find an executor or administrator for the first Will. I think the fact she is treating the executor of the second Will as the rightful executor is evidence she does not believe there is sufficient evidence to support the first Will being a mutual Will.

marleneb1

naedanger said:

marleneb1 said:

naedanger said:

marleneb1 said:

Thank you all for your responses and your time. Unfortunately I am no clearer! Can I just ask 2 specific questions?
1. My solicitor's firm drew up the original mirror Wills in 2010. They were not engaged by the Executor named in the new Will for probate. Is it a fact that they are not able to consult their own file notes without the Executor's permission?
2. What differentiates a mirror Will from a mutual Will? Is there a specific clause that makes it binding - surely there must be some specific form of wording making it easy to differentiate one from the other? If there is, what is the point of a mirror Will? 
Thank you so much for your continued patience.

My layman's understanding:
1. The solicitor and their firm can consult their own files whenever they want. However they cannot communicate any information in it to an external party without their client's permission or implied permission. As their client is now dead they will consider their client's executor to be their client.
2. Regarding the difference between mutual and mirror wills see the following:
https://www.clarionsolicitors.com/articles/mutual-wills-explained
So while mutual wills do not need explicit wording to say they cannot in the future be revoked or amended without the other party's consent there needs to be very strong evidence that this is what the parties wished. 

Thank you for this and for the link - very interesting. With regards to your point 1 - I don't see how they can view the Executor as their client when she has instructed a different solicitor to act on her behalf. This is what I mean about getting nowhere fast - it seems that not only the Executor but also the legal profession put obstacles in our path at every turn

The solicitor's client was your late step-mother. The fact your late step-mother subsequently appointed another solicitor does not change the fact that the first solicitor is still bound by her professional responsibilities to her ex-client (your step-mother). In particular she is still bound to maintain client confidentiality. The only person the first solicitor can release her ex-client's private information to is her ex-client's executor even if that executor is not a client in their own right.

If the solicitor believes there is evidence in her files that shows the first Will was a mutual Will and therefore the valid Will then she should be behaving quite differently. She should then not consider the executor of the second Will to be the rightful executor and instead should be making efforts to find an executor or administrator for the first Will. I think the fact she is treating the executor of the second Will as the rightful executor is evidence she does not believe there is sufficient evidence to support the first Will being a mutual Will.

Thanks once again for your considered response  - I really do appreciate it. I realise my current solicitor does not believe the Wills to be mutual or binding but seems unwilling/unable to explain why. I think there are as many opinions as there are solicitors and I do not believe she has used her best efforts in my interests. She was certainly quick enough to ask for a £500 deposit before going on to inform me that she would be unable to act for me if I wished to "ask questions of her firm around the circumstances of how the Wills were drawn up." I had in fact told her at the outset that we wished to instruct her firm because they had drawn up the original Wills and could consult their file to see what were the intentions of the parties to the Wills. Why, I wonder, is this suddenly not an option? 
My brother and I intend to fight this because it is unjust and not what was agreed. But how do you go about finding a solicitor who is willing to act on your behalf in whom you can have trust and confidence? We know we may lose but some things are more important than money, at least to us.

xylophone

Try a STEP /ACTAPS solicitor specialising in contentious probate.

Example

https://www.penningtonslaw.com/expertise/solicitors-for-individuals-private-client-and-tax/contentious-probate-and-trust-disputes

naedanger

marleneb1 said:

naedanger said:

marleneb1 said:

naedanger said:

marleneb1 said:

Thank you all for your responses and your time. Unfortunately I am no clearer! Can I just ask 2 specific questions?
1. My solicitor's firm drew up the original mirror Wills in 2010. They were not engaged by the Executor named in the new Will for probate. Is it a fact that they are not able to consult their own file notes without the Executor's permission?
2. What differentiates a mirror Will from a mutual Will? Is there a specific clause that makes it binding - surely there must be some specific form of wording making it easy to differentiate one from the other? If there is, what is the point of a mirror Will? 
Thank you so much for your continued patience.

My layman's understanding:
1. The solicitor and their firm can consult their own files whenever they want. However they cannot communicate any information in it to an external party without their client's permission or implied permission. As their client is now dead they will consider their client's executor to be their client.
2. Regarding the difference between mutual and mirror wills see the following:
https://www.clarionsolicitors.com/articles/mutual-wills-explained
So while mutual wills do not need explicit wording to say they cannot in the future be revoked or amended without the other party's consent there needs to be very strong evidence that this is what the parties wished. 

Thank you for this and for the link - very interesting. With regards to your point 1 - I don't see how they can view the Executor as their client when she has instructed a different solicitor to act on her behalf. This is what I mean about getting nowhere fast - it seems that not only the Executor but also the legal profession put obstacles in our path at every turn

The solicitor's client was your late step-mother. The fact your late step-mother subsequently appointed another solicitor does not change the fact that the first solicitor is still bound by her professional responsibilities to her ex-client (your step-mother). In particular she is still bound to maintain client confidentiality. The only person the first solicitor can release her ex-client's private information to is her ex-client's executor even if that executor is not a client in their own right.

If the solicitor believes there is evidence in her files that shows the first Will was a mutual Will and therefore the valid Will then she should be behaving quite differently. She should then not consider the executor of the second Will to be the rightful executor and instead should be making efforts to find an executor or administrator for the first Will. I think the fact she is treating the executor of the second Will as the rightful executor is evidence she does not believe there is sufficient evidence to support the first Will being a mutual Will.

Thanks once again for your considered response  - I really do appreciate it. I realise my current solicitor does not believe the Wills to be mutual or binding but seems unwilling/unable to explain why. I think there are as many opinions as there are solicitors and I do not believe she has used her best efforts in my interests. She was certainly quick enough to ask for a £500 deposit before going on to inform me that she would be unable to act for me if I wished to "ask questions of her firm around the circumstances of how the Wills were drawn up." I had in fact told her at the outset that we wished to instruct her firm because they had drawn up the original Wills and could consult their file to see what were the intentions of the parties to the Wills. Why, I wonder, is this suddenly not an option? 
My brother and I intend to fight this because it is unjust and not what was agreed. But how do you go about finding a solicitor who is willing to act on your behalf in whom you can have trust and confidence? We know we may lose but some things are more important than money, at least to us.

Is she going to refund the £500? If not then ask her to explain what it covered? (She would have had to read both Wills and check the client file. However that doesn't sound like a big task.)

You could speak to a solicitor who specialises in contentious probate to get another view but I would expect them to charge just to review the case and provide an opinion on your possible options. (And they could justify higher charges because they are unfamiliar with the case and their opinions are more expert.)

I suggest you first try and look at the evidence you currently have as though you were a disinterested party. (What you believe and what you can demonstrate to a disinterested party are not always the same thing, and it is what you can evidence that matters.)
  
Do you think there is enough to persuade someone that the the first Wills could not be revoked when there is nothing in them to say that? The Wills were written by a professional, mutual Wills are actually rare, and it is not uncommon for people to change their wills. 

marleneb1

xylophone said:

Try a STEP /ACTAPS solicitor specialising in contentious probate.

Example

https://www.penningtonslaw.com/expertise/solicitors-for-individuals-private-client-and-tax/contentious-probate-and-trust-disputes

Once more, my grateful thanks for your help. This is what we need and I will research.

marleneb1

naedanger said:

marleneb1 said:

naedanger said:

marleneb1 said:

naedanger said:

marleneb1 said:

Thank you all for your responses and your time. Unfortunately I am no clearer! Can I just ask 2 specific questions?
1. My solicitor's firm drew up the original mirror Wills in 2010. They were not engaged by the Executor named in the new Will for probate. Is it a fact that they are not able to consult their own file notes without the Executor's permission?
2. What differentiates a mirror Will from a mutual Will? Is there a specific clause that makes it binding - surely there must be some specific form of wording making it easy to differentiate one from the other? If there is, what is the point of a mirror Will? 
Thank you so much for your continued patience.

My layman's understanding:
1. The solicitor and their firm can consult their own files whenever they want. However they cannot communicate any information in it to an external party without their client's permission or implied permission. As their client is now dead they will consider their client's executor to be their client.
2. Regarding the difference between mutual and mirror wills see the following:
https://www.clarionsolicitors.com/articles/mutual-wills-explained
So while mutual wills do not need explicit wording to say they cannot in the future be revoked or amended without the other party's consent there needs to be very strong evidence that this is what the parties wished. 

Thank you for this and for the link - very interesting. With regards to your point 1 - I don't see how they can view the Executor as their client when she has instructed a different solicitor to act on her behalf. This is what I mean about getting nowhere fast - it seems that not only the Executor but also the legal profession put obstacles in our path at every turn

The solicitor's client was your late step-mother. The fact your late step-mother subsequently appointed another solicitor does not change the fact that the first solicitor is still bound by her professional responsibilities to her ex-client (your step-mother). In particular she is still bound to maintain client confidentiality. The only person the first solicitor can release her ex-client's private information to is her ex-client's executor even if that executor is not a client in their own right.

If the solicitor believes there is evidence in her files that shows the first Will was a mutual Will and therefore the valid Will then she should be behaving quite differently. She should then not consider the executor of the second Will to be the rightful executor and instead should be making efforts to find an executor or administrator for the first Will. I think the fact she is treating the executor of the second Will as the rightful executor is evidence she does not believe there is sufficient evidence to support the first Will being a mutual Will.

Thanks once again for your considered response  - I really do appreciate it. I realise my current solicitor does not believe the Wills to be mutual or binding but seems unwilling/unable to explain why. I think there are as many opinions as there are solicitors and I do not believe she has used her best efforts in my interests. She was certainly quick enough to ask for a £500 deposit before going on to inform me that she would be unable to act for me if I wished to "ask questions of her firm around the circumstances of how the Wills were drawn up." I had in fact told her at the outset that we wished to instruct her firm because they had drawn up the original Wills and could consult their file to see what were the intentions of the parties to the Wills. Why, I wonder, is this suddenly not an option? 
My brother and I intend to fight this because it is unjust and not what was agreed. But how do you go about finding a solicitor who is willing to act on your behalf in whom you can have trust and confidence? We know we may lose but some things are more important than money, at least to us.

Is she going to refund the £500? If not then ask her to explain what it covered? (She would have had to read both Wills and check the client file. However that doesn't sound like a big task.)

You could speak to a solicitor who specialises in contentious probate to get another view but I would expect them to charge just to review the case and provide an opinion on your possible options. (And they could justify higher charges because they are unfamiliar with the case and their opinions are more expert.)

I suggest you first try and look at the evidence you currently have as though you were a disinterested party. (What you believe and what you can demonstrate to a disinterested party are not always the same thing, and it is what you can evidence that matters.)
  
Do you think there is enough to persuade someone that the the first Wills could not be revoked when there is nothing in them to say that? The Wills were written by a professional, mutual Wills are actually rare, and it is not uncommon for people to change their wills. 

Very many thanks again for your time and invaluable advice - you have provided much sound advice and food for thought. Of course all of this has provoked intense emotional reactions and your post has reminded me that I need to be practical and objective going forward.