Is this will valid

elsien

 The law only gives the rights to see medical records after death to certain people.  As you are not an executor, and not making a claim, you don’t have the right to ask to see them. Executor could get hold of them and show them to you if they were so inclined, but given the friction between you I can see why that’s not a route they want to go down.

https://www.nhs.uk/common-health-questions/nhs-services-and-treatments/can-i-access-the-medical-records-health-records-of-someone-who-has-died/

bobster2

youyangs said:

bobster2 said:

youyangs said:

Negotiations are progressing, but I have a couple of questions. Wondering if anyone knows the answers?

 - the will identifies an executor, but if they refuse or are unable to act then someone else is appointed. What is the situation  where both have acted? How can it be possible for both to act?

- a Substitutional Provision directs the residue to an organisation, but the will author had intended to benefit a child beneficiary via their parents. If the parents had pre-deceased the will author, this intention wouldn't have materialised. Does this show a want of knowledge and approval?

So the parents have not pre-deceased the author? But you want to argue that because the will writer didn't take this possibility (that didn't materialise) into account - this somehow shows the whole will is invalid (based on your view of their intentions)?

It thinks this shows "clutching at straws" on your part rather than a solid ground for challenging a will.

It is fair comment to call this clutching at straws. I considered the same thing myself. It would be clutching, if the issue was my main head of claim, It isn't even close to being the case though. However the matter remains of interest.

One of the main defences of the other party is that the residual estate has been directed to them, because the intention of the disposition was that their daughter would receive the inheritance. If a Substitutional Provision had the potential to prevent this, then that is significant. Especially as the substitution should have been a Default Beneficiary according to the will instructions. Which executed correctly, wouldn't have prevented the daughter inheriting, even if her parents pre-deceased.

You seem to be scrambling around trying to find as many small details as possible to cast doubt on this will - e.g. your previous comment about one of the witnesses being 82 (shock!!!).

I'm not an expert in this area - but in my experience in other contexts when people go in with a "kitchen-sink approach" to challenge something (i.e. throwing in loads of largely trivial reasons) this tends to muddy the waters (as @Sarahspangles has suggested) and undermine their case and credibility.

youyangs

It is in the small details that large mistakes can be found.

The age of a will witness is relevant. I had been reading guidance at the time about choosing someone younger than yourself, in case the attestation were to be called into question. In this case the other witness wrote the will, was made an executor and was a close friend of the main beneficiary (that beneficiary made first contact about the will also). So if the 82 year old (now 86) were to not have survived the testatrix, the whole attestation would be "proved" by the person who wrote the will and them alone.

I'm currently reading the Legal Service Consumer Panel submissions about regulating will writing services. There were a few cases in there, where instructions differed from execution and also where will writers had pre-sold executor services. These practices were criticised.

I don't see poor execution and executors acting when they shouldn't, as small details.

youyangs

Another interesting point that has arisen from looking at the Legal Services Consumer Panel, is the issue with an attestation page being completely separate from the main body of the will. Even when there was sufficient space after the clauses to include all signatures.

Again some may see this as clutching at straws, or a small detail - but humour me. 

Only one person is alive who signed that attestation page. Even if the other witness was alive, they only signed that page and saw nothing else. Dependent on where and how that will was stored, what chance would a will writer have of substituting the original pages at death? 

They wrote the will. They witnessed the will. The will benefits their close friend. The close friend made the initial contact about having a will written. The main beneficiary had been out of the testatrix's life for decades. 

Is there any cause for suspicion?

Sarahspangles

At the moment you’ve blocked probate by raising a caveat - are the other party coming to the table to negotiate?  Is that still your desired resolution rather than overturning the Will altogether? Have you retained a solicitor for the negotiation?

youyangs

The caveat is raised and the other side are willing to negotiate.

Negotiation is still my desired resolution and the avoidance of any solicitor or litigation costs, if possible.

Despite wanting to negotiate only, I still feel the the more information I have about everything - the better position I'm in to argue my case (regardless of whether that strengthens or weakens the case).

With strength I have more arguments to present to the other side, persuading them to negotiate, rather than litigate.

bobster2

youyangs said:

It is in the small details that large mistakes can be found.

The age of a will witness is relevant. I had been reading guidance at the time about choosing someone younger than yourself, in case the attestation were to be called into question. In this case the other witness wrote the will, was made an executor and was a close friend of the main beneficiary (that beneficiary made first contact about the will also). So if the 82 year old (now 86) were to not have survived the testatrix, the whole attestation would be "proved" by the person who wrote the will and them alone.

I'm currently reading the Legal Service Consumer Panel submissions about regulating will writing services. There were a few cases in there, where instructions differed from execution and also where will writers had pre-sold executor services. These practices were criticised.

I don't see poor execution and executors acting when they shouldn't, as small details.

In this case the 82 year old, now 86, is alive. Again you're into trying to make a case based on all sorts of hypotheticals.

Your original post at the start of this thread noted some potentially relevant points - since then everything you've added seems to just muddy the waters.

The moment you mentioned the age of the witness - early in the thread I thought "Oh no - kitchen sink coming" and sure enough you've pilled on more and more inconsequential details undermining the credibility of your case.

Sarahspangles

youyangs said:

The caveat is raised and the other side are willing to negotiate.

Negotiation is still my desired resolution and the avoidance of any solicitor or litigation costs, if possible.

Despite wanting to negotiate only, I still feel the the more information I have about everything - the better position I'm in to argue my case (regardless of whether that strengthens or weakens the case).

With strength I have more arguments to present to the other side, persuading them to negotiate, rather than litigate.

I suspect that the other side (or a Court if it comes to it) will not be interested in hypothetical scenarios or examples of poor practice.  Surely you need to focus on whether or not you can prove the Will is invalid, or rather, whether or not the other side think you can prove it?  Rambling away from the point actually weakens your case.

You say they are willing to negotiate and then that you hope to persuade them to negotiate.  But are you actually negotiating with them - via meetings/letters?

youyangs

bobster2 said:

youyangs said:

It is in the small details that large mistakes can be found.

The age of a will witness is relevant. I had been reading guidance at the time about choosing someone younger than yourself, in case the attestation were to be called into question. In this case the other witness wrote the will, was made an executor and was a close friend of the main beneficiary (that beneficiary made first contact about the will also). So if the 82 year old (now 86) were to not have survived the testatrix, the whole attestation would be "proved" by the person who wrote the will and them alone.

I'm currently reading the Legal Service Consumer Panel submissions about regulating will writing services. There were a few cases in there, where instructions differed from execution and also where will writers had pre-sold executor services. These practices were criticised.

I don't see poor execution and executors acting when they shouldn't, as small details.

In this case the 82 year old, now 86, is alive. Again you're into trying to make a case based on all sorts of hypotheticals.

Your original post at the start of this thread noted some potentially relevant points - since then everything you've added seems to just muddy the waters.

The moment you mentioned the age of the witness - early in the thread I thought "Oh no - kitchen sink coming" and sure enough you've pilled on more and more inconsequential details undermining the credibility of your case.

I originally only mentioned the (at the time) 82 year old, because another poster asked me who the other witness was. Just to be clear, the age of that witness has nothing whatsoever to do with anything I am putting forward in negotiation, or anywhere else. 

I've read a lot of court cases and have seen judges refer prolixity and/or "kitchen sink" approaches. I'm aware of not succumbing to that approach. How a will operates in real-life situations can rely on hypotheticals (I think), to determine testamentary intentions. Did the testatrix make a mistake with the clauses, or did the will writer err with the substitutional provisions? Either the testatrix has not fully understood what they were approving, or the intention is more from the will writer than the author.

The inconsequential details are part of only a few "heads of claim". I have no "kitchen sink" final document, but I do have multiple thoughts and notes I'm still considering.

I draw attention to:

"Recently, in Mundil-Williams v Williams [2021] EWHC 586 (Ch), HHJ Keyser QC, sitting as a deputy High Court Judge, set aside a will prepared by a solicitor and properly executed on the grounds that the testator did not know and approve its contents. The Judge considered that even though the testator had read the will carefully, it did not accord with instructions that the testator had given to his solicitor a few weeks earlier and that the way the clauses of the will operated represented a very significant alteration from the benefit that certain beneficiaries should have received."

Reeves v Drew & Ors [2022] - EWHC 153 (Ch) - Chapter 340

youyangs

Sarahspangles said:

youyangs said:

The caveat is raised and the other side are willing to negotiate.

Negotiation is still my desired resolution and the avoidance of any solicitor or litigation costs, if possible.

Despite wanting to negotiate only, I still feel the the more information I have about everything - the better position I'm in to argue my case (regardless of whether that strengthens or weakens the case).

With strength I have more arguments to present to the other side, persuading them to negotiate, rather than litigate.

I suspect that the other side (or a Court if it comes to it) will not be interested in hypothetical scenarios or examples of poor practice.  Surely you need to focus on whether or not you can prove the Will is invalid, or rather, whether or not the other side think you can prove it?  Rambling away from the point actually weakens your case.

You say they are willing to negotiate and then that you hope to persuade them to negotiate.  But are you actually negotiating with them - via meetings/letters?

I'm not inclined to agree about a court not being interested in hypotheticals, or examples of poor practice. I've studied a couple dozen (relevant) cases in depth and these things are examined and sometimes in great detail.

In total agreement about having to convince the other side that I could prove the will is invalid. I'm probably completely wrong, but part of that process is to convince the will writer of their errors and his and the main beneficiary's collusion in suspicious circumstances. I'm struggling to see how executor rights to act and incorrect clauses weaken my case?

Negotiations have already begun. I should explain myself better. In trying to strengthen my case, I'm looking to persuade the other side to continue to negotiate.