Contesting a Will as Next-of-Kin

Dymphna60

I don’t do know if I have missed this but is it possible for the friend to present the bills for the costs (S)he incurred to the administrator of the estate ( charity representative I assume) as debt against the estate ? 

Getting the Will over turned does sound unlikely. Deceased was alone with solicitor and clerk when Will was drawn up is that right ? Solicitor was called in by the deceased not by any hospital/ hospice staff ? 

I always find it slightly odd when people say oh it is really suspicious that someone changed their Will in the last weeks of their life would that not be exactly the time you would review it and decide if you wanted to make changes? 

I do agree though that it is perfectly reasonable for a person appointed executor without being asked and especially being left nothing in the Will to renounce. Maybe someone who has never administered an estate doesn’t appreciate that there is a fair bit of time and effort involved ? 

[Deleted User]

Wow, this thread takes some reading. If the OP et al think that they have a case to contest a Will then should engage the services of a specialist firm that deals with Will disputes. However, they should be prepared to be knocked back. Having recently seen a letter from a solicitor refuting family claims of undue influence; deceased not being of a sound mind etc, there is a lot of case law covering such claims. 

RomfordNavy

Dymphna60 said:

I don’t do know if I have missed this but is it possible for the friend to present the bills for the costs (S)he incurred to the administrator of the estate ( charity representative I assume) as debt against the estate ?

Not very likely as it was not written into the will and therefore nothing legally to do with the estate.  Also don't forget will be dealing with solicitors from multiple different charities each of whom will presumably be attempting to maximise their profits.  No suspicion about what was done as that had been mentioned to the family before.

Dymphna60 said:

I do agree though that it is perfectly reasonable for a person appointed executor without being asked and especially being left nothing in the Will to renounce. Maybe someone who has never administered an estate doesn’t appreciate that there is a fair bit of time and effort involved ? 

But the deceased was more than fully aware of the time and costs involved in winding-up an estate having done that twice themselves.

maman

Dymphna60 said:

I don’t do know if I have missed this but is it possible for the friend to present the bills for the costs (S)he incurred to the administrator of the estate ( charity representative I assume) as debt against the estate ? 

Getting the Will over turned does sound unlikely. Deceased was alone with solicitor and clerk when Will was drawn up is that right ? Solicitor was called in by the deceased not by any hospital/ hospice staff ? 

I always find it slightly odd when people say oh it is really suspicious that someone changed their Will in the last weeks of their life would that not be exactly the time you would review it and decide if you wanted to make changes? 

I do agree though that it is perfectly reasonable for a person appointed executor without being asked and especially being left nothing in the Will to renounce. Maybe someone who has never administered an estate doesn’t appreciate that there is a fair bit of time and effort involved ? 

I'd agree that if you weren't asked to be an executor  (so obviously had no opportunity to say no) then renouncing is quite acceptable. Even without expecting to be included, some people might find it an onerous task. 

In this case though, I don't think the person who made the solicitor's (or will writer's?) appointment was the same executor. This one seemed to have offered to pay to save stress but then changed his mind about being an executor when no provision made in the will for recompense. I agree that it could have been paid from the estate as an outstanding debt if the (then executor) friend hadn't chosen/volunteered to pay himself.  

Manxman_in_exile

thegreenone said:

Manxman_in_exile said:

(Only if the solicitor was unsure as to the client's mental capacity would they get some sort of medical assessment - and even then I think they'd have to be VERY UNSURE, not just a little.)

Ah, okay.  An elderly relative (of previous sound mind) had to have a medical assessment before she could write a new Will about two weeks before they died.  I thought this was standard, so I stand corrected.  However, it was not a solicitor in our case but a Will Writer.  Perhaps that's the reason.  

No worries.  I suspect you are right - will writers are basically unqualified people and would not have a clue if somebody had capacity or not.  You also need to remember (and I think I'm correct) that the test of capacity is a legal test not a medical or clinical one.  It's basically a simple question of whether the testator understands what they are doing or not.  They don't necessarily have to be of "sound mind" - whatever that is.

It's a bit like the M'Naughton Rules that determine whether a defendant was, or is, insane in a criminal trial.  The basic issue is whether or not they understood what they were doing.  So a defendant might be "insane" or mentally ill in a clinical or medical sense, but be perfectly sane in a legal sense because they knew what they were doing.  Psychiatrists can give expert evidence in court as to whether a defendant may or may not have known what they were doing, but ultimately it would be a question for a jury to decide.

Manxman_in_exile

RomfordNavy said:

Manxman_in_exile said:

If the OP is now in the mess they are in because this friend has renounced their executorship and nobody can now authorise a funeral, then the friend is responsible.

The OP needs to let the NHS or the local authority sort out the funeral if they don't want to contact the beneficiairies to do so.

... The OP cannot legally notify anyone, as a non-beneficionary they are technically not even allowed to see this Will...

I'm not certain you fully understand? 

It is correct that non-beneficiaries do not have any legal right to see a will until probate has been granted and it has been made a public document.  But that does not mean that they are "not even allowed to see [the] will" before then.  Not having a right to see something is not the same as not being allowed to see it.  Do you follow?

If you, or anybody else, KNOWS what is in the will, of course you, or anybody else, can notify the beneficiaries.  Who or what would prevent you from doing so?  Just because it's the executor or administrator who is meant to do so does not prevent someone else from doing so if there is NO executor or administrator - as there appears not to be in your cousin's case.

Just somebody inform the charities.  And if you want to challenge the will on the grounds that you are Next of Kin - just do so - although it will probably be a waste of time and money...

elsien

Two stage capacity assessment.
1. Do they have an impairment of mind or brain. (This can be permanent like a learning disability, or temporary due to illness, drugs, alcohol.)
2. With regards to this specific decision, at the time it needs to be made, can they understand and retain the salient points for long enough to weigh up the pros and cons and communicate the decision.

Court cases have continued to apply the principle that the threshold for making a simple will is quite a low bar, because often people make them when they are older and potentially less well.  So broadly speaking, the person needs to know what a will is, understand what assets they are leaving, understand who it might affect depending on the choices they make, and have an awareness of who they may have obligations to, such as dependents.  

It doesn't matter if they make a will then forget the details a week later. Or if they have dementia and have  no clue who the prime minister is. Or if they have a delusion that the royal family are all lizards who are out to take over the earth (unless they want to leave their estate to said lizards). If they can understand the relevant points needed to make a will they have capacity to do so, even if they lack capacity in other areas.
The presumption is also in favour of capacity as a starting point. 

That is what you need to consider when looking at any sort of challenge on capacity grounds. 
And why GPs would generally not want to touch it - they would have neither the time nor the inclination to look at what would be considered relevant for the various legal decisions they might be being asked about.

74jax

RomfordNavy said:

Dymphna60 said:

I don’t do know if I have missed this but is it possible for the friend to present the bills for the costs (S)he incurred to the administrator of the estate ( charity representative I assume) as debt against the estate ?

Not very likely as it was not written into the will and therefore nothing legally to do with the estate.  Also don't forget will be dealing with solicitors from multiple different charities each of whom will presumably be attempting to maximise their profits.  No suspicion about what was done as that had been mentioned to the family before.

Dymphna60 said:

I do agree though that it is perfectly reasonable for a person appointed executor without being asked and especially being left nothing in the Will to renounce. Maybe someone who has never administered an estate doesn’t appreciate that there is a fair bit of time and effort involved ? 

But the deceased was more than fully aware of the time and costs involved in winding-up an estate having done that twice themselves.

There's not really any costs involved in being an Executor - there is the time of course, and you do need to have your head screwed on. 

Winding up an estate should not be taken lighty and if anyone has any doubts it is best to renounce rather than start the task.

Manxman_in_exile

RomfordNavy said:

Manxman_in_exile said:

If the OP is now in the mess they are in because this friend has renounced their executorship and nobody can now authorise a funeral, then the friend is responsible.

The OP needs to let the NHS or the local authority sort out the funeral if they don't want to contact the beneficiairies to do so.

No the family do not consider the friend responsible, if you understood and appreciated the whole position and surrounding situations then you might understand why.

Edit: What about the fact that this executor had not been asked if they were willing to be an executor?

....

But you specifically said that the family friend who arranged the solicitor had been asked to be an executor?

You posted this at 6:43pm on 05 August (sorry - can't quote from different pages so that is why I have given date and time - to allow you to find the quote):

"...A close friend arranged the Solicitors to visit to do the will as the deceased was apparently being pressurised by the Nurses to get a Will done.  This close friend by the way was not gifted anything in the Will but was listed as a reserve Executor.  Seems strange to ask someone to be an Executor but give them nothing for their trouble...".

And I TOTALLY fail to understand why any body should expect to get ANYTHING for acting as executor... 

Manxman_in_exile

RomfordNavy said:

Manxman_in_exile said:

If the OP is now in the mess they are in because this friend has renounced their executorship and nobody can now authorise a funeral, then the friend is responsible.

The OP needs to let the NHS or the local authority sort out the funeral if they don't want to contact the beneficiairies to do so.

No the family do not consider the friend responsible, if you understood and appreciated the whole position and surrounding situations then you might understand why.

...

Listen to this and you may understand my point of view:

My brother's wife died.  They had two adult children.  Under my brother's and sister-in-law's mirror wills their two children were the only ultimate beneficiaries.  My brother remarried and had a new will made in contemplation of that marriage.  This second will effectively disinherited his two children in favour of his second wife, absolutely.  He had appointed his daughter executor of his will.  (She happens to be a lawyer but that is irrelevant - he made her executor because she was his daughter, not because she's a lawyer).  He died.  His daughter discovers after his death that she and her brother have been left virtually nothing in comparison to what they would have got if he'd not remarried and executed a new will.  Rather than throwing her toys out of the pram and screaming that she won't act as executor because she and her brother have not been "remembered", she gets on with the job and executes her father's wishes - because that's what he wanted her to do.  And I say "Good for her!".  (She and her brother have been "remembered" in our wills by the way because they did "the right thing").

That's why I say that the friend who arranged for the solicitor to visit your cousin and then renounced the executorship when they discovered they hadn't been left anything is responsible for your cousin currently remaining unburied.  And you did say that they had been asked to be executor - not that they did not know about it.  If there are other circumstances that explain the friend's actions I'd love to know what they are.

But I agree with you that I can understand somebody renouncing an executorship that they did not know about.  But you said they'd been asked to be executor...