New Will Found after mum's death

Stunnedbyevents

My brother had lasting power of attorney and looked after my mother's affairs and was the executor of her will drawn up in 2017.   One of my other brothers took my 90 year old mother to change her will in November 2022 to his benefit without the rest of the family knowing.   Where do we stand?

Brie

Should we presume your brother isn't willing to talk to anyone about this and sort things out?  If so then talk to the solicitor who drew up the will.  First question would be was mum of sound mind and knew what she was doing?  Did the solicitor check on this?  

presumably you could take it to court and have the new will overturned but if the estate isn't worth much (a very relative term of course) then the solicitors will be the only ones to win out of this.  

Exodi

Having recently helped my stepdad draw up his will (so technically coming at it from the opposite side as he wanted to disinherit some of his children - but to be clear, I'm a negligible beneficiary of the will, it's up to him what he wants to do, I'd personally have preferred to avoid the inevitable drama as the executor), I was briefed by a will solicitor on the grounds for disputing a will (with the intention of protection from contest). In his circumstances, he hasn't informed the children he intends to disinherit (so I'm definitely the other party in the OP's scenario).

The main grounds being:

mental capacity - e.g. was the person of a fit state of mind to make the will? As an example it may be argued that someone suffering from severe dementia does not have sufficient mental capacity to write their will. In your circumstances, depending on the reasons your brother had LPA then this may be a point to consider.

understanding - e.g. did the person understand the contents of the will? If it was complicated while the alleged testator may have low levels of literacy (for example), you could challenge that it was unlikely they'd have understood the contents of the will

undue influences - e.g. were they coerced into writing the will? Many people jump to this one (as you may) as elderly people often have help with writing wills but please be aware that in no uncertain terms, you would be accusing the other party of fraud, which is a crime. Due to the serious nature, there is a high burden of proof. Simply saying 'he was close to her and now he's magically getting a big chunk of her will, if that isn't coercion, I don't know what is' does not cut it. In fact it is entirely reasonable that someone may decide to reward a beneficiary for supporting them in their final years.

forgery/fraud - won't waste time on this, pretty obvious if you have reason to suspect the alleged testator didn't write the will.

Without knowing more details about your situation, I'd say it's not unreasonable or unbelievable that your mother may have changed her will to the benefit of your brother, given the circumstances of looking after heir affairs. Unless you have specific reasons/evidence to allege foul play, your mother/brother have no responsibility whatsoever to inform you that they are changing what they wish to leave you in the will. You shouldn't count on wills made while someone is alive.

Exodi

Brie said:

Should we presume your brother isn't willing to talk to anyone about this and sort things out?  If so then talk to the solicitor who drew up the will.  First question would be was mum of sound mind and knew what she was doing?  Did the solicitor check on this?  

presumably you could take it to court and have the new will overturned but if the estate isn't worth much (a very relative term of course) then the solicitors will be the only ones to win out of this.  

Depending on the circumstances, I'm not sure the brother or mother are obliged to inform the family of any updates/changes to the mothers will, nor defend them to the future beneficiaries. I'm not sure what you mean by 'sort things out', her will is her wishes, there should be no negotiation on what she wanted. Inheritances are a gift not a right.

Of course this is all assuming there are no grounds for contest, and granted, a revision at 90 years old with an LPA granted, there certainly could be some. However, the scenario of a mother changing a will to the benefit of the child supporting them in their final years is not unreasonable or uncommon.

I'd always advice court as a last resort as the only people that usually end up winning are the solicitors.

BooJewels

Exodi said:

[snip] You shouldn't count on wills made while someone is alive.

Is that not the very core premise of a will?  

I presume what you meant was, whilst someone is still alive, their current will may be meaningless - as it could well be changed again before they pass - so you shouldn't count on the content.

As the lady has now passed, if the Will is properly valid (it should at least be correctly signed, witnessed etc. if done by a solicitor), then it would have to stand, unless there was certainty that she wasn't of sound mind to be able to make it, or couldn't fully understood what she was signing.  In order to challenge this I think you'd need sufficient medical evidence.  The solicitors would have to satisfy themselves that she was before making the Will for her.  

Both my father and aunt re-wrote their wills within 18 months of their deaths, because their spouses had died, so at least, they needed to appoint new executors - in each case, the solicitor took great care to ensure that there was no coercion and they understood what they were doing and insisted on seeing them alone and on more than one occasion.  Age alone doesn't make you incapable of making a valid will - my aunt was 93 when she wrote hers and I can't really imagine anyone at that age being much sounder.

badmemory

The solicitor should have asked her some searching questions to check everything was alright & not allowed anyone else in the room whilst taking instructions.  My solicitor told me what he was doing & why & I was only in my 60s.  They are supposed to be very careful now & also it protects themselves.  I would be asking that solicitor some searching questions.

BooJewels

Exodi said:

Brie said:

Should we presume your brother isn't willing to talk to anyone about this and sort things out?  If so then talk to the solicitor who drew up the will.  First question would be was mum of sound mind and knew what she was doing?  Did the solicitor check on this?  

presumably you could take it to court and have the new will overturned but if the estate isn't worth much (a very relative term of course) then the solicitors will be the only ones to win out of this.  

Depending on the circumstances, I'm not sure the brother or mother are obliged to inform the family of any updates/changes to the mothers will, nor defend them to the future beneficiaries. I'm not sure what you mean by 'sort things out', her will is her wishes, there should be no negotiation on what she wanted. Inheritances are a gift not a right.

Of course this is all assuming there are no grounds for contest, and granted, a revision at 90 years old with an LPA granted, there certainly could be some. However, the scenario of a mother changing a will to the benefit of the child supporting them in their final years is not unreasonable or uncommon.

I'd always advice court as a last resort as the only people that usually end up winning are the solicitors.

I meant to respond to this in my earlier post, but forgot to.  In respect of the bit in bold - I don't think it was the brother with the LPA that assisted with the will changing - it was another brother - so I don't think the will was changed to reflect the assistance from an Attorney, I think the new 'beneficiary' was a different person entirely.

Also worth noting here, that the one thing you are actually forbidden from doing under an LPA, is to change the donor's will.

Stunnedbyevents

Thanks everyone for your time and valuable advice.  The brother who took my mother to change her will wasn't the one with Power of Attorney and wasn't the Executor in the original will.  I am suspecting he coerced her into changing it as she was 90, got very confused and was in the the last months of her life and very vulnerable.     

Brie

I think the crucial bit may be that if brother with the LPA is acting because the LPA has been activated as needed (or whatever the correct terminology is) then second brother should not be changing the will as the LPA shows mum is not capable of making sound decisions.  

When I used the phrase about second brother "sorting things out" I meant that it sounded like he wasn't engaging with the rest of the family and basically may have taken the money and run off rather than stopping and having conversation about what happened and why and whether it was fair and what mum really wanted.

BooJewels

Stunnedbyevents said:

Thanks everyone for your time and valuable advice.  The brother who took my mother to change her will wasn't the one with Power of Attorney and wasn't the Executor in the original will.  I am suspecting he coerced her into changing it as she was 90, got very confused and was in the the last months of her life and very vulnerable.     

I'm sorry that you find yourself in this situation - such activity just destroys family relationships and causes a lot of bad feeling and emotional turmoil.

I think the best you could hope for is to have a conversation with the solicitors who drew up the will and ask them what measures they took to ensure that she wasn't being coerced and changed her will quite freely and with understanding - they should be alert to this as a matter of course, but especially in someone of advanced years. 

But I don't know what obligation they have to even discuss it with you, or explain themselves.

Exodi

BooJewels said:

Exodi said:

[snip] You shouldn't count on wills made while someone is alive.

Is that not the very core premise of a will?  

I presume what you meant was, whilst someone is still alive, their current will may be meaningless - as it could well be changed again before they pass - so you shouldn't count on the content.

You know exactly what I mean, yes you shouldn't count on someones current will while they are alive as it can change, that is the point I made that you're now making in response to me.

I don't think anyone might have got confused and thought I had meant that you should only count on wills people make while they're dead, but I appreciate you clearing that up, just in case.