Can I check if my Mother had her mental capacity checked by Solicitors when she made her will

TBagpuss

taylordebs said:

My Mum remarried and there are three t children from that marriage (my half siblings) , and now that she has passed away the children are saying that I am not in the will which was only made a couple of years ago and she was going into dementia at that time. Do I have a right to ask solicitors if she was assessed as fit to sign a will as her solicitors are saying that they can only tell me that with permission from the 3 children who are the executors? So I'm stuck as no way will they grant that! Thanks

Sorry to hear this, it must be upsetting, especially if you didn't know and your mum hadn't talked to you. 

It may be worth asking the half siblings, perhaps explain that it is distressing and you would liketo know whether mum gave any explanation to the solicitors about her rationale for th decision, and ask if they will consent to the solicitors disclosuing their attenance notes from when they met with her.

Beyond that I would say that it would be sensible to take proper advice. It's generally pretty difficult to make a sucessful challenge to a will unless there is very strong evidence that the person making it lacked capcity at the time they made it , and  the fact that she made it via a solicitor makes that more ifficult (although not impossible) 

Generlaly, the solictor who takes instructions would form a view on whether they are satisfied that the person has capacity to make a will - capacity means that they are able to undestandthe nature of what they are doing (i.e. that they are making a will, and what that means) the full definition is :

The testator must:

• understand the nature of their act (of making a will) and its effects
• understand the extent of the property in their estate
• be able to comprehend and appreciate the claims to which they ought to give effect, and
• in that respect that no disorder of their mind “shall poison his affections, perverse his sense of right, or his will in disposing of his property

In my experience, particularlly if they are meeting someone who is older, the solicitor may well do things such as asking generally about the client's family, ask them more than once about what they want the will to say, where they are changing the will to remove someone from an older version ask about why, and perhaps ask them to expalin back what they've been told by the solicitor, so they can form of view of how well they've understod, and whether the answers they give are consistent. However, I think normally they would only suggest medical evidence or involving a docotor if thre is anything which causes them as the solicitor to have concerns about the clients capacity or if they are given information which makes them think that the issue may be raised (so if someone had disclosed that they had been dignosed with dementia, they might recommend a medical witness & report in order to protect from the risk of a challenge, even though someone could retain testamentary capacity even if they have quite advanced  dementia , depending on how it affected them.)

People are allowed to make choices which are unkind or unfair , and it's on the person seeking to claim that someone lacked capacity to prove it, it's not for the lawyer or executor to prove they had capacity. 

If you make a formal challenge then at that point the court cna mke orders about that should be disclosed, but obviously that would be expensive and may not be worth pursuing (at least on a financial basis) as the costs could easily swallow up any potential interest in the estate you might be entitled to. 

taylordebs

TBagpuss said:

taylordebs said:

My Mum remarried and there are three t children from that marriage (my half siblings) , and now that she has passed away the children are saying that I am not in the will which was only made a couple of years ago and she was going into dementia at that time. Do I have a right to ask solicitors if she was assessed as fit to sign a will as her solicitors are saying that they can only tell me that with permission from the 3 children who are the executors? So I'm stuck as no way will they grant that! Thanks

Sorry to hear this, it must be upsetting, especially if you didn't know and your mum hadn't talked to you. 

It may be worth asking the half siblings, perhaps explain that it is distressing and you would liketo know whether mum gave any explanation to the solicitors about her rationale for th decision, and ask if they will consent to the solicitors disclosuing their attenance notes from when they met with her.

Beyond that I would say that it would be sensible to take proper advice. It's generally pretty difficult to make a sucessful challenge to a will unless there is very strong evidence that the person making it lacked capcity at the time they made it , and  the fact that she made it via a solicitor makes that more ifficult (although not impossible) 

Generlaly, the solictor who takes instructions would form a view on whether they are satisfied that the person has capacity to make a will - capacity means that they are able to undestandthe nature of what they are doing (i.e. that they are making a will, and what that means) the full definition is :

The testator must:

• understand the nature of their act (of making a will) and its effects
• understand the extent of the property in their estate
• be able to comprehend and appreciate the claims to which they ought to give effect, and
• in that respect that no disorder of their mind “shall poison his affections, perverse his sense of right, or his will in disposing of his property

In my experience, particularlly if they are meeting someone who is older, the solicitor may well do things such as asking generally about the client's family, ask them more than once about what they want the will to say, where they are changing the will to remove someone from an older version ask about why, and perhaps ask them to expalin back what they've been told by the solicitor, so they can form of view of how well they've understod, and whether the answers they give are consistent. However, I think normally they would only suggest medical evidence or involving a docotor if thre is anything which causes them as the solicitor to have concerns about the clients capacity or if they are given information which makes them think that the issue may be raised (so if someone had disclosed that they had been dignosed with dementia, they might recommend a medical witness & report in order to protect from the risk of a challenge, even though someone could retain testamentary capacity even if they have quite advanced  dementia , depending on how it affected them.)

People are allowed to make choices which are unkind or unfair , and it's on the person seeking to claim that someone lacked capacity to prove it, it's not for the lawyer or executor to prove they had capacity. 

If you make a formal challenge then at that point the court cna mke orders about that should be disclosed, but obviously that would be expensive and may not be worth pursuing (at least on a financial basis) as the costs could easily swallow up any potential interest in the estate you might be entitled user1

Flugelhorn said:

Spendless said:

Grumpy_chap said:

Oh dear, this thread almost seems to be the other side of this one:
https://forums.moneysavingexpert.com/discussion/6400391/change-to-will-to-remove-siblings-of-2nd-husband/p1

Apart from this seems to be the biological Mum of all 4 children, rather than excluding her step-children.

That's what I find odd, why exclude one biological child, I would expect there to be a reason, whatever it is. Not always for a negative reason either. Not that she did it. but one of my Great Aunts had 4 children and her eldest child asked his Mum to exclude him from her will because he was far wealthier than his 3 siblings  .  

there can be positive and negative reasons - it may be in this case that the mother considered that really all the assets in her estate would have come from the second marriage ie the father of the half siblings and actually it is really his money that is being left to them and not hers

Or (as the OP is older) they may already have more assets, or they have benefited from another inheritance.

No...all married with families of our own.

taylordebs

msb1234 said:

• First of all, do you have a medical diagnosis that she had dementia at the time her wills was written? Because if you don’t, I doubt you have a leg to stand on contesting the will. It may well be that your mother thought something like that you’d benefit from your father’s will so she left her estate to her younger children? Could that be a possibility?

I don't have the proof of the diagnosis but my siblings had informed me at the time that it was official and of course I had witnessed her decline. They were all grownup adults with families of their own so no reason not to put me in the will other than the fact they were a separate family unit I suppose...thanks

taylordebs

tacpot12 said:

If she signed the Will at the solicitors office, it is likely that the witnesses will have been office staff, who may not have had any contact with your mum before being invited to witness her sign the Will. The witnesses have no duty to assess her capacity; that duty rests with the solicitor dealing with her case. I doubt the witnesses will be able to recall anything specific about your mother, unless they knew her personally.

If your mother has left you out of her will, you can talk to a solicitor about the potential to make a claim against your mother's will. You should think carefully about doing so, as it is likely to be expensive and very uncertain as to what you might receive. A better option might be to make up with you half-siblings and see if you can get them to agree that it isn't fair that you have been left out. They can make a Deed of Variation to give you whatever they feel like giving you. (This happened with a friend of mine, who got half of what their sibling had been left.)  

Thanks...I had not fallen out with them at all and have explained to them what my Mum would have wanted but it's sadly falling on deaf ears. I don't even really want to try and contest it but just feel that they are almost ignoring the love that my Mum had for me.

diystarter7

taylordebs said:

diystarter7 said:

diystarter7 said:

OP
In order to support your quest, how did you get on with your mum?
How often did you see/call hers and vice-versa?

Did the will inc any other siblings you have or family from your dad's side?

Dis your mum ever mention the will to you and are the half-siblings a lot more financially vulnerable than you and you are relatively comfortable financially when compared with them?

What has stepdad said I'm assuming you have spoken with him

TBH, I'm very much anti-will turning but if there is a case and evidence of manipulation then it needs to be addressed.

I wish you luck in getting a clear picture re your mother's state of mind when the will was written and the reason/s why you was left out.

No one has mentioned this but it is important PS: Almost all medical conditions vary person by person and there are early stages of dementia where ones ability has been hardly impacted. The person may not be a 100% of they were the year/s before but are capable of making an informed decision. There, it will be very difficult to prove you mother lacked capacity unless there is a record of her health stating that for around that time. With dementia, even a bit later people have good and bad days but early dementia from the people I've seen via work years ago were able to go out alone, stay at home alone etc,etc

Your choice and good luck and I hope you get the info you seek to rest your concerns one way or another

Hi OP

If/when you come back and either confirm if you have seen the will, I will then post a few more thoughts on this.
Good luck.

Hi yes Mum told me that she had written her and seemed upset to tell me that I wasn't in it. Stepdad died 2 days before Mum. I was extremely close to my Mum and saw her and spoke regularly but stepdad didn't like me and I understand that he would want to protect his new children...no step children involved. I feel she might have been pushed Into making the will. All of us half siblings are adults with houses and families of our own. Thoughts very welcome thanks

thanks. The problem is as you know, proving your concerns. Re your mum, "pushing her" is your perception but no evidnece. Re dementia, as far as I can tell by your posts no evidence.
When children get older and people remarry, if all is well they may tend to favour those that live with them or closer to them and in this case were your mums, love of her life, IMHO.

Personally, I'd lave ans see what the will was about and if nothing for you, then move on. 

Sincerely, I hope you find the truth, whatever that may be

diystarter7

taylordebs said:

tacpot12 said:

If she signed the Will at the solicitors office, it is likely that the witnesses will have been office staff, who may not have had any contact with your mum before being invited to witness her sign the Will. The witnesses have no duty to assess her capacity; that duty rests with the solicitor dealing with her case. I doubt the witnesses will be able to recall anything specific about your mother, unless they knew her personally.

If your mother has left you out of her will, you can talk to a solicitor about the potential to make a claim against your mother's will. You should think carefully about doing so, as it is likely to be expensive and very uncertain as to what you might receive. A better option might be to make up with you half-siblings and see if you can get them to agree that it isn't fair that you have been left out. They can make a Deed of Variation to give you whatever they feel like giving you. (This happened with a friend of mine, who got half of what their sibling had been left.)  

Thanks...I had not fallen out with them at all and have explained to them what my Mum would have wanted but it's sadly falling on deaf ears. I don't even really want to try and contest it but just feel that they are almost ignoring the love that my Mum had for me.

It is odd, but at times facts are stranger than fiction.
Good luck

GrumpyDil

OP. 

I had a similar issue a few years ago. The solicitor took instructions for a new will over the phone from my sibling without ever seeing my mother. My mother's best friend who was a witness to the will contacted me as she was not sure my mother really understood what she was doing at the time of executing the will.

I was also able to prove my sibling lied when applying for probate and giving a statement about the execution which was asked for due to the weakness of the signature.

Because my sibling was somehow funded by legal cover it took about 4 years and 15000 in legal fees for me before we finally came to a settlement. 

In other words any challenge will be difficult and expensive even if you have decent evidence suggesting there are issues to investigate so hard though it may seem you will need to think carefully if you are thinking of going legal. 

JJWSJS8700

Tbagpuss

Is that your opinion on defining mental capacity or definite, the second bullet point stating:

 “Should know the extent of their estate.”

Do you know, when a will is being made does the solicitor verify what the testators assets actually are or do they believe anything the testator says they own?

JJWSJS8700

taylordebs said:

diystarter7 said:

diystarter7 said:

OP
In order to support your quest, how did you get on with your mum?
How often did you see/call hers and vice-versa?

Did the will inc any other siblings you have or family from your dad's side?

Dis your mum ever mention the will to you and are the half-siblings a lot more financially vulnerable than you and you are relatively comfortable financially when compared with them?

What has stepdad said I'm assuming you have spoken with him

TBH, I'm very much anti-will turning but if there is a case and evidence of manipulation then it needs to be addressed.

I wish you luck in getting a clear picture re your mother's state of mind when the will was written and the reason/s why you was left out.

No one has mentioned this but it is important PS: Almost all medical conditions vary person by person and there are early stages of dementia where ones ability has been hardly impacted. The person may not be a 100% of they were the year/s before but are capable of making an informed decision. There, it will be very difficult to prove you mother lacked capacity unless there is a record of her health stating that for around that time. With dementia, even a bit later people have good and bad days but early dementia from the people I've seen via work years ago were able to go out alone, stay at home alone etc,etc

Your choice and good luck and I hope you get the info you seek to rest your concerns one way or another

Hi OP

If/when you come back and either confirm if you have seen the will, I will then post a few more thoughts on this.
Good luck.

Hi yes Mum told me that she had written her and seemed upset to tell me that I wasn't in it. Stepdad died 2 days before Mum. I was extremely close to my Mum and saw her and spoke regularly but stepdad didn't like me and I understand that he would want to protect his new children...no step children involved. I feel she might have been pushed Into making the will. All of us half siblings are adults with houses and families of our own. Thoughts very welcome thanks

So your Mother did tell you she had written a will and you were not included and you have seen it on the probate register as mirror wills.

Thats very sad, many families are kept away from their Mother’s by  their own natural father, so I dread to think what happens with ‘step fathers’.

When you see the will preparation statement, it’s unbelievable what you read took place, sometimes.

Who is  the executor?

I wouldn’t let it go if you feel the bond between you and your mother is being ignored, send Executor a solicitor’s letter to let them know you may dispute and they might share with you or they’ll not get their inheritance either if in dispute.

JJWSJS8700

user1977 said:

If the solicitor met her then I wouldn't expect they would have proceeded if they had doubts about her capacity (at any point during the process - generally they'd be in contact with the client both when taking initial instructions and when it comes to signing the Will). Beyond that, they don't need to have checked her capacity - so the onus would be on you to prove that in fact she didn't have capacity to make a Will.

And bear in mind these things aren't binary - you can e.g. forget what day it is today, but still be certain about who you want to inherit your estate.

Solicitor is classed as qualified to assess mental capacity and is supposed to.

Thats all of a week, - meeting, making, then solicitor stamping  the witnessed will.