Contest Will on Legal Aid?

miz_2

My father's left some money to be shared between his four children on his death. My parents have mirrored wills. Sadly he died earlier this year, and the solicitor handling probate is saying that the will shares the money between 'said children'. Two of my siblings were named in the will in the bit which appoints executors, but apparently because it says 'said children' it effectively disinherits the two of us who aren't listed. I know Dad wouldn't have wanted to do this and Mum is horrified that her will says the same thing. (They both even visited their solicitor 2 years ago to check that it was all ok and were assured that their wills were fine.)

Does anyone know how to go about contesting a will? Is a Will not saying what he thought it meant a valid reason for us to contest it?

And would it be expensive? My brother is disabled and I have a low income. Could we get Legal Aid?

Thank you in advance to anyone with any ideas

Incisor

What is the attitude of the Inherited siblings to the Disinherited? If everyone who benefits from the will is in agreement, I understand that the will can be varied without too much todoo.

miz_2

Sadly my Brother (who was named as an executor) died before my Dad so his son will be beneficiary instead of him. The probate solicitor says that being a minor he can't agree to vary the will (and no one can grant permission on his behalf).

Incisor

miz wrote: »

Sadly my Brother (who was named as an executor) died before my Dad so his son will be beneficiary instead of him. The probate solicitor says that being a minor he can't agree to vary the will (and no one can grant permission on his behalf).

Sorry to hear this. It is all getting very complicated. Some of this appears to hinge around the wording - It may be worth rechecking the text to see if it has been interpreted correctly - or it might be worth your mother recasting her will to undo the injustice at a later stage

miz_2

Compared to their previous wills it looks like a hunk of text (the bit where they listed us all) was left out in this one. Do the solicitor's notes of the appointment when the will was drafted count for anything (it clearly showed 4 beneficiaries)? The wording of the will is very strange and ambiguous. It's obvioudly a mistake - certainly if they had meant to deliberately disinherit some of their children the solicitor wouldn't have worded it in such an ambiguous and contradictory fashion. My parents always read things before they signed so obviously they both trusted their solicitor's wording when they signed the wills. It seems to me that you need a second solicitor to check the document means what the first solicitor says it does! (Does trading standards apply to solicitors??)

Any help at all would be appreciated. I'm having trouble finding info on the probate process eg. WHO decides what a will means? (Is it the probate solicitor's call? Is it a consensus of the beneficiaries? Or is there some kind of judge somewhere along the way who decides who gets what?)

zzzLazyDaisy

Re your immediate problem - the children who missed out on their inheritance can sue the solicitor who drafted the will for negligence. Yes legal aid is available, however that probably won't help much as the legal aid board must be repaid out of any compensation awarded. This type of action costs £££££'s and is only worth it if you are talking about large sums of money. However, the executors should at least raise a formal complaint through the solicitor's complaints procedure, and if necessary make a complaint to the law society.

As far as your Mother's will is concerned, she can change her will at anytime. So she can and should sort her own will out to ensure that it carries out her wishes effectively.

As far as your deceased brother is concerned - his son will only inherit his share if the will specifically states this, otherwise the dead brother's inheritance is either shared between the remaining children, or goes back into the pot and presumably goes to your mother, depending on the wording of the will.

As someone else has said, it is open to your mother to redress the balance in her own will, or even now, if she has the cash to do so.

However, I do have to say that the above comments are given for information only and the person you should be asking for advice is the solicitor dealing with the will now, rather than people on a message board who don't know the full ins and outs of what has happened.

miz_2

Big thanks. Especially for the info about raising a complaint. At the very least if nothing else the solicitor who did this to us all at this awful time should get a rap over the knuckles. My Dad would be so cross if he knew!

From some of the articles I've read today I don't suppose the sums concerned would make it worthwhile contesting the will, other than to pay yet more solicitors. :-(

My only comfort is that I know it's a mistake and not a deliberate disinheritance.

localhero

Hi Miz,

It's a very sad (and very common) irony that solicitors make lots of money trying to sort out the mistakes that other solicitors have made in drafting Wills.

When there is a dispute over the wording, the ultimate arbitrator will be a judge.

I strongly disagree that you should do nothing about this incompetent 'professional' who has charged good money for 2 wills that are not fit for purpose.

The will can be challenged where it can be shown that the testator's (ie your dad's) original intention differed to what the will said. This can be proved by A) the file notes of the solicitor; and the testimony of your mother who has got an equally dud version herself. If she says that it was her's and your dad's instruction for a 4 way split then it will be clear that the solicitor has made a blunder.

So the remedy: solicitors are well insured, so I feel the best route would be claiming against the solicitor's Professional Indemnity Insurance for compensation for your losses as well as the costs to rectify your mother's will.

Please don't walk away as I feel this individual must be held to account - for you are unlikely to be the only person affected by this individual's incompetence.

If you want further assistance away from the forum, please pm me.

zzzLazyDaisy

This is excellent advice from localhero.

In order to make a claim against the solicitor's indemnity fund, you must first make a formal complaint through the solicitor's own complaints procedure, and then, if you do not get satisfaction make a complaint to the law society.

If it is a mistake by the solicitor (it sounds as if this is the case) You will probably find that the firm will rectify your mother's will free of charge, and provided the cost of covering the gifts in the will is not too expensive, you may also find that they compensate you themselves rather than claiming on their professional indemnity insurance.

Alternatively, you could get another solicitor to do all this for you, but as i said before, even if you get legal aid you will have to repay it out of the compensation.

The best bet is to telephone the original firm of solicitors who drafted the will and ask for a copy of their complaints procedure. I suggest that the children who lost out make one complaint, and your mother make a second complaint, but put the two complaints in together. It isn;t difficult, just tell them what you have told us.

miz_2

Thanks for your help. I will start the complaint and see what comes of it. In the meantime I've entered a caveat on probate, which I think (hope) is the right thing to do, basically just a letter to the probate office asking them to register the caveat and a chque for £15. (I think) this means that I must be notified before probate can go through. It only lasts six months apparently so I might need to do it again if this hasn't been sorted out by then.

Gillianh2

Miz,

Whilst I agree with all of the above advice re registering a complaint etc; against solicitor who wrote original wills, with regard to your immediate problem whereby you are effectively left out of the will. Could you not resolve this with the sibling who is to inherit so that any money etc; is split equally as per your Dads wishes.
This would be the cheaper option whilst you pursue your complaint and would also be fairer and be keeping with your Dads wishes.

Good Luck