Is this will valid

youyangs

bobster2 said:

youyangs said:

Section 15 of the Wills Act 1837 states that an attesting witness “shall be admitted as a witness to prove the execution of such Will, or to prove the validity or invalidity thereof”.

This from the Society of Will Writers website:

"A witness may be called upon at a later date to provide a sworn statement (affidavit) to provide evidence of the circumstances of the signing of the Will if there are any problems with the signatures on the Will, doubts as to the mental capacity of the testator at the time the Will was executed, or any claims that the testator was subjected to undue influence."

With that in mind, the will drafter was a close friend of the main beneficiary, was referred to the testatrix by the main beneficiary, and the testatrix was led to believe the will drafter was a "solicitor". How can the will drafter witness provide an impartial account of the mental capacity of the testatrix, or whether there was undue influence?

If the will drafter was a stranger to all involved and there was no question about mental capacity, then there would be no problem. 

But in this case, I can only see that the will is invalid on execution.

You seem to have done a lot of background reading on this - and you seem very convinced that the will can be shown to be not valid.  So not quite sure what the purpose of this thread is? You don't need to convince the contributors that the will is not valid. You need to convince a court - and will need specialist legal advice for that.

I'm just trying to canvass opinion. I'm completely prepared to be proved wrong, which is why I created the thread.

I wouldn't want to commence legal proceedings, if I'm wrong.

youyangs

Sarahspangles said:

You seem to have done a lot of research, but where is this going?  You need to convince a court, not a bunch of internet strangers. Also if as you say they have already applied for private, is the clock not ticking?  Our most recent application was completed in a month.

Like I said, I might be wrong.

Wasn't aware probate could be granted in a month. The property hasn't been valued yet. Would that need to happen first?

youyangs

Also I'm looking to negotiate a settlement.

Things like the lack of two independent witnesses, or vague clauses in the will give me positions of negotiation strength.

People on here that have responded so far have sounded knowledgeable and analytical. I'm very interested in all views, whether supportive or critical.

Sarahspangles

youyangs said:

Sarahspangles said:

You seem to have done a lot of research, but where is this going?  You need to convince a court, not a bunch of internet strangers. Also if as you say they have already applied for private, is the clock not ticking?  Our most recent application was completed in a month.

Like I said, I might be wrong.

Wasn't aware probate could be granted in a month. The property hasn't been valued yet. Would that need to happen first?

Some online applications for probate are granted in even shorter timescales.  A property valuation for probate may not involve someone going over the property.  It could be the executors own estimate or a free drive-by valuation by an estate agent familiar with the local market.  

My concern would be that you’re being strung along by this executor and beneficiary who know that when they have probate your powers to object are weaker.  Imagine going to Court and being asked ‘Well why didn’t you raise a caveat?” - saying you were unsure you had reason to do so and we’re unwilling to take proper legal advice really isn’t going to help your case.

youyangs

I share that concern about possibly being "strung along".

Fair comment with the caveat point you've made.

I'll get the caveat in place.

Do you think I have a good point with the lack of two independent witnesses?

youyangs

Then you see this on the government website:

"Entering a caveat can lead to legal action and legal costs. You should try to come to an agreement with the person applying for probate first."

Which is what I am doing. But in doing so I could be being "strung along". So confusing.

Sea_Shell

How deep are your pockets?      

When things "go legal", they tend to also "go expensive".  

At the end of the day, like others have said, you appear to be well researched, but no one here can give you any assurances as to which side a court may come down on. 

    

Sarahspangles

youyangs said:

Do you think I have a good point with the lack of two independent witnesses?

I don’t know - I’m not a lawyer.  It doesn’t feel like it’s your core issue, which is lack of capacity/undue influence.  If the relative had capacity, it’s irrelevant that she used that capacity to make a poor choice of Will writer, executor and beneficiary.

youyangs

My pockets are shallow. Just to get to a mediation, I was quoted in the region of £25K.

Yes I understand that nobody can give me a definitive answer on how a court may decide the case. A judge can provide different conclusions on cases of similarity. I've digested just about everything on BAILII.

I'm not really asking about what a judge might conclude though. I'm just wondering what people think about the points I've raised - or whether anyone actually knows a definitive answer to any of them. 

Sarahspangles

Sea_Shell said:

How deep are your pockets?      

When things "go legal", they tend to also "go expensive".  
    

Seconded - it’s best not to go into a solicitor’s office with your relevant information all jumbled up with a lot of supposition and arguments you’ve constructed from internet research.  You can probably state the issue in a couple of sentences.  I’d write those down on a sheet of A4 with the names of the parties to help the solicitor ask their questions.  They’ll soon establish if you’ve got enough to build a case on.