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CONTESTING A WILL – ANATOMY OF A TYPICAL WILL CLAIM

Here is a point by point summary of what is likely to happen in a typical will dispute where we are claiming against the validity of a will. I will provide details of a will dispute claim involving a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

1. Instructions received to contest the validity of a deceased’s will by her son on the grounds that at the time it was made, she lacked legal testamentary capacity. The son claimed she had dementia and did not have the capacity to make a will at the time it was made. He said that towards the end his sister (whom he believed was the sole beneficiary under the new will) looked after his mother towards the end of he life (as she lived closest) but that during this period she tried to exclude him from his mother’s life, notwithstanding he was her youngest child and was actually the apple of her eye.

2. It was during this period (shortly before his mother’s death) that a dispute started between himself and his sister given she also took over his mother’s affairs under a power of attorney, but he believed she was misusing it as during the same period she purchased a new car (when she had no money of her own) and started going on extravagant holidays.

3. She did not tell him about his mother’s death. He found out from another near relative and she tried to exclude him from participating in her funeral, but she went to it anyway.

4. He contacted us soon afterwards and asked us to consider helping him under a no win no fee arrangement to dispute what he assumed was likely to be a Will, made during the period under which he strongly suspected his sister would be the sole beneficiary. He did not have a copy of the Will and didn’t know whether it was a home-made will, or likely to have been made by a local solicitor.

5. We agree to help him under the no win no fee arrangement to contest the will. We consider with the client whether we should enter a Caveat to stop the Grant of Probate and decide on balance to do this given if necessary the Caveat can be easily removed.

6. We obtain authorities from our client to obtain his mother’s medical records and write to her GP and the hospitals attended. The records arrive and clearly reveal his mother was being treated from memory and other problems by the local Community Mental Health Team. This followed a referral from her GP who had performed a Mini Mental State Examination (which are a series of basic questions that most average people can easily answer) on his mother about 2 years previously under which she had scored about 10 out of 30. There was also a reference to social services at the time, but we were not able to obtain their records without the executors consent.

7. Our client finds out the name of Solicitors he says are handling his late mother’s estate. We write to them and set out in detail our suspicions about a will being made during the short period before her death when it is clear that she lacked legal testamentary capacity. Further that our client is contesting this will. We provide details of her medical records and invite full disclosure of all of their relevant papers including the Will and their will file and access to social services records. We confirm that our client is willing to engage with their client in so called ADR (alternative dispute resolution – in this instance mediation) to try and avoid a court action.

8. The solicitors in question write back and provide a copy of the Will. This confirms it was made during the period when in our view the deceased lacked legal testamentary capacity. However, they refuse to release their will file.

9. We write back and say that unless the will file is released, we will make an application for its disclosure, through something called “pre action disclosure”. Under this, they are obliged to provide their papers and unless they do so they can be forced to do so by the court. It is not a full blown court claim against the validity of the will but a type of subsidiary claim. We also send them a series of questions (called Larke v Nugus questions) which they are obliged to answer, failing which, again, we can make an application to the court to force them to do so.

10. The Solicitors concerned reluctantly provide the papers (their will file) and answer our questions about the formation and execution of the will. It is quite plain our client’s sister played a key part in the process; in fact all of the communications were through the sister and there is no reasonable explanation for this. However, it is quite plain to our client that it was because it is his “sister’s will” and not his mother’s.

11. All this is extremely helpful, but we need “evidence” to sustain our claim that his late mother lacked capacity to prove the will was likely to be invalid. Failing that it will not be possible to win the will dispute. The solicitors acting for our client’s sister are aware of this and point out that we have no evidence to sustain the will contest dispute and threaten to “warn” the caveat unless the remove it. The warning process will make the caveat permanent so that it can only be removed by court order. It does not actually make much difference in a claim of this nature where our client has sufficient and proper grounds for challenging his mother’s will and will inherit under the rules of intestacy. It is only an effective means of getting rid of a caveat if the will dispute has no merit and/or the person challenging the will, has no real interest in the outcome of the dispute (in other words won’t inherit if the will is invalidated by intestacy or under an earlier valid will).

12. We write to the deceased’s GP and treating old age Psychiatrist. The Old Age Psychiatrist is extremely helpful and agrees to provide us with a report which confirms our suspicions that the deceased did not have legal testamentary capacity. Whilst this is still disputed by our client’s sister’s solicitors, it is agreed between the parties that the will should be overturned with our costs being met by the estate.
By all means contact us for assistance in relation to your own dispute.

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