Invalid Will

edited 30 November -1 at 1:00AM in Deaths, Funerals & Probate
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WYSPECIALWYSPECIAL Forumite
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edited 30 November -1 at 1:00AM in Deaths, Funerals & Probate
I am Executor to a Will of which the validity is being challenged.

In my opinion the challenge has no hope whatsoever of being successful but obviously it has to be allowed to run its course.

In a case like this if it goes to court it is clear who the complainant is but who is the respondent?

Obviously the person whose Will it is has died. Will I be the respondent on behalf of the beneficiaries?
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  • Yorkshireman99Yorkshireman99 Forumite
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    WYSPECIAL wrote: »
    I am Executor to a Will of which the validity is being challenged.

    In my opinion the challenge has no hope whatsoever of being successful but obviously it has to be allowed to run its course.

    In a case like this if it goes to court it is clear who the complainant is but who is the respondent?

    Obviously the person whose Will it is has died. Will I be the respondent on behalf of the beneficiaries?
    The executor takes the place of the deceased. What grounds is it being challenged on? Court action should be the last resort and often people make all sorts of emotional threats as part of the grieving process. What grounds are being stated for the challenge?
  • WYSPECIALWYSPECIAL Forumite
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    That's part of the issue I don't really know what grounds they are looking at. From the questions asked about the Will it seems there may be a feeling that either the testator lacked testimonial capacity or there was undue influence involved. I don't think either of these grounds has got any chance of succeeding but if they did then the testator will have died intestate so the complainant wont be able to inherit anyway.

    On the other hand they state that they are seeking a variation so that they can be included in the list of beneficiaries. My understanding is that this is not a legal remedy that can be imposed by a court but simply requires the consent of every beneficiary? Is it possible for some beneficiaries to agree and therefore share their original inheritance or does each and every beneficiary have to be in agreement?
  • Keep_pedallingKeep_pedalling Forumite
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    A deed of variation can only be put in place if every beneficiary effected by it agrees. Benificiaries who still receive what was stated in the will do not need to be involved.

    I presume this person was included in a previous will, but if they are not closely related to the deceased they have a snowballs chance in hell of succeeding in a challenge. How did they even discover the contents of the will?
  • MojisolaMojisola Forumite
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    WYSPECIAL wrote: »
    That's part of the issue I don't really know what grounds they are looking at. From the questions asked about the Will it seems there may be a feeling that either the testator lacked testimonial capacity or there was undue influence involved. I don't think either of these grounds has got any chance of succeeding but if they did then the testator will have died intestate so the complainant wont be able to inherit anyway.

    On the other hand they state that they are seeking a variation so that they can be included in the list of beneficiaries. My understanding is that this is not a legal remedy that can be imposed by a court but simply requires the consent of every beneficiary? Is it possible for some beneficiaries to agree and therefore share their original inheritance or does each and every beneficiary have to be in agreement?

    This sounds very much like blackmail - do a DOV so I inherit something or I'll cause as much delay and upset as I can.

    It's very difficult to prove incapacity or influence so I'd call their bluff.

    If some or all of the beneficiaries think the problem-causer is justified in thinking he/she should have inherited something, they can make a DOV to hand over some of their inheritance to that person. Only the people in agreement with a DOV have to sign; any beneficiaries who don't agree will get their inheritance as set out in the will. A DOV cannot be made by or on behalf of a minor.
  • WYSPECIALWYSPECIAL Forumite
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    There are no previous Wills. The Testator made the Will late in life after consulting a solicitor. They then went back for another appointment to execute the Will in the presence of two witnesses who work at the solicitors office so I am confident that there are no issues with it.

    I'm not sure that the complainant, or their solicitor who will only have the information their client has given them, is aware that they wouldn't inherit anything if the Will is proved to be invalid.
  • WYSPECIALWYSPECIAL Forumite
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    How did they even discover the contents of the will?

    Probate has been granted so it is a public document that anyone can purchase a copy of.
  • Yorkshireman99Yorkshireman99 Forumite
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    WYSPECIAL wrote: »
    That's part of the issue I don't really know what grounds they are looking at. From the questions asked about the Will it seems there may be a feeling that either the testator lacked testimonial capacity or there was undue influence involved. I don't think either of these grounds has got any chance of succeeding but if they did then the testator will have died intestate so the complainant wont be able to inherit anyway.

    On the other hand they state that they are seeking a variation so that they can be included in the list of beneficiaries. My understanding is that this is not a legal remedy that can be imposed by a court but simply requires the consent of every beneficiary? Is it possible for some beneficiaries to agree and therefore share their original inheritance or does each and every beneficiary have to be in agreement?
    All affected beneficiaries have to agree to a DOV. I sounds like an attempt at blackmail to me. Given the circumstances you describe it is unlikely the will can be challenged on the grounds of lacking capacity. I suggest you ignore them and proceed with obtaining probate.
  • macmanmacman Forumite
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    Every beneficiary whose position would be disadvantaged by the deed of variation has to agree.
    No free lunch, and no free laptop ;)
  • SailorSamSailorSam Forumite
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    I was listening to a Solicitor on our local radio talking about Wills. She advised if you didn't want someone in the family to receive anything, it was always best to leave them a very small minimal amount, that would show that you'd thought about them and not just forgotten them.
    I think she said how difficult it was to successfully contest a Will, and most came to nothing.
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  • WYSPECIALWYSPECIAL Forumite
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    macman wrote: »
    Every beneficiary whose position would be disadvantaged by the deed of variation has to agree.

    Thanks, I am aware of that, but what happens if some agree and some don't? In this case there are no specific gifts just instructions to divide the residue equally between 10 people so its's a simple 10% each.

    Four other people feel they should benefit and want a variation. If, for example, five of the beneficiaries agree to a variation and five don't can I pay the five that don't their share of 10% each and then divide the other 50% of the estate equally between the five that agree and the four that want in, so 50% divided by 9 to give them 5.5% of the total each?

    Do I need a unanimous agreement to a variation or can some agree to be disadvantaged whilst other aren't?
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