Wills and Probate

[vint1954]

I am an executor to my stepfathers will, along with his daughter. His will has been in existence for 30 years, unaltered and I am NOT a benificiary.

 

My stepfather married again 2 1/2 years ago aged 82, under verry suspicious circumstances, having just been discharged from 6 weeks in a mental facility. I have had no contact with him since.

 

My stepfather passed away a couple of days ago, having been verry ill for the past 2 1/2 years.

 

His new wife has informed his daughter, that a new will was made 2 weeks ago, where she is the beneficiary. I understand that the new will was drawn up by her solicitors and not our family solicitors.

 

She has done this before, with another old gent.

 

Given that his health was so poor at the end, being on oxygen 24 hrs a day, can this be legal for his new wife to arrange for a new will, disinheriting his children?

 

Are ther any steps that I should take as an executor of his original will?

 

Vint.

[The Mould]

I am an executor to my stepfathers will, along with his daughter. His will has been in existence for 30 years, unaltered and I am NOT a benificiary.

 

My stepfather married again 2 1/2 years ago aged 82, under verry suspicious circumstances, having just been discharged from 6 weeks in a mental facility. I have had no contact with him since.

 

My stepfather passed away a couple of days ago, having been verry ill for the past 2 1/2 years.

 

His new wife has informed his daughter, that a new will was made 2 weeks ago, where she is the beneficiary. I understand that the new will was drawn up by her solicitors and not our family solicitors.

 

She has done this before, with another old gent.

 

Given that his health was so poor at the end, being on oxygen 24 hrs a day, can this be legal for his new wife to arrange for a new will, disinheriting his children?

 

Are ther any steps that I should take as an executor of his original will?

 

Vint.

 

Good afternoon Vint

 

You should enter a Caveat against your stepfather's Estate without delay, send your request to the London Probate Registry, inform the new wife that you have taken this action and when you receive notice from said Registry, serve a copy upon new wife.

 

A testator can make another Last Will and Testament if he wants to, revoking any previous will, however, the circumstances need to be investigated and therefore you should send written letter(s) to the new wife asking for those details and if she is willing to disclose those details on a voluntary basis.

 

Request a copy of the new will and compare contents with the original, the children should request access to medical records of their father.

 

As a Solicitor firm has prepared said document, they would most likely of ensured a mental capacity test be carried out upon your stepfather before execution of said document and there will most likely be strict clauses written into said document, however, you should investigate and then determine upon contesting the said will or not.

 

The children should be able to claim upon their father's Estate under s75 family provision act if all else fails.

 

Kind regards

 

The Mould

[The Mould]

Good afternoon Vint

With reference to my first posting on your case, I would strongly advise the children of the deceased to instruct a specialist contentious probate Solicitor/law firm to act for them as potential claimant’s in respect of any challenge as to the validity of the will.

While you/they (the children) are awaiting the first appointment with your chosen legal representative, you should still send the suggested correspondence to the new wife and the executors of the new will.

Your correspondence to the new executors should state that the children intend to question the validity of the will since their father had previously prepared and executed a will which has been unchanged in 30 years; the children are currently obtaining evidence in support of such, before deciding whether to proceed with proceedings in respect of the estate. This letter is intended to put you on notice as to the same.

As the Personal Representative (the new executors, that is, Vint) you do, of course, have duties not only to the estate but also to the children as the potential claimants therein. We would, therefore, ask that you supply a copy of the new will and a copy of the Death Certificate, further; we ask that you provide full details of the estate including all assets and liabilities.

The above request for voluntary disclosure is sought merely to reduce the potential costs that could be incurred in this matter and therefore your consideration to comply with said request would be appreciated.

In addition to the original will, due to the family history and the potential mental state of the deceased at the time the ‘new will’ was prepared/signed, the children believe there may be grounds for contesting the same based on not only a potential lack of testamentary capacity but also lack of knowledge and approval as well as undue influence and further potential grounds to contest said new document under the Inheritance (Provision for Family and Dependants) Act 1975.

As you have notice of a potential claim, we also require your written confirmation that you will ensure no items are removed from the deceased’s former property and that no persons other than yourselves will exercise access to the property. You confirmation that you hold the only key will be required. Should this not be received by return, we will consider the issuing of an injunction to prevent any further work being undertaken by yourselves in the estate.

Vint, you should still make your request to said probate registry to enter a Caveat against your stepfather’s estate.

Kind regards

The Mould

[vint1954]

The Mould,

 

Thanks for your response.

 

I will get onto it on Monday.

 

Vint.

[payingonlyencouragesthem]

 

She has done this before, with another old gent.

 

Given that his health was so poor at the end, being on oxygen 24 hrs a day, can this be legal for his new wife to arrange for a new will, disinheriting his children?

 

Are ther any steps that I should take as an executor of his original will?

 

Vint.

 

This is quite a common thing. I was acquainted with a family who had this problem and they got a private detective to look into it as there was a substantial property at stake. Turns out this lady too had done the same thing before and was actually cohabiting with another bloke her own age at the time of the "marriage". There seem to be bent solicitors around who will set these things up for a cut of the winnings. You should take The Mould's advice and do a bit of background checking too.

[The Mould]

The Mould,

 

Thanks for your response.

 

I will get onto it on Monday.

 

Vint.

 

Good morning Vint

 

Did you send off your request to enter a Caveat against your stepfather's estate?

 

Kind regards

 

The Mould

[vint1954]

Good morning The Mould,

 

I saw our family solicitors on Tuesday. They held the original will and this still stands.

 

The situation seems to be resolving itself unless the old will is challenged.

 

Strangely, her Solicitor has advised, that they did not certify or register my stepfathers new will.

 

Maybe he could read between the lines.

 

Vint

[The Debt Star]

The marriage will have invalidated his original will regardless mate.

 

There are a few factors militating against a successful claim here:

1. Revocation of original will by marriage

2. The new will was professionally drawn up by solicitors

3. There is a presumption of capacity that must be disproved

4. If the Will were ever to be successfully challenged (which imo will be very difficult), then an intestacy situation arises becaiuse of 1 above. This results in the first £250,000 worth of the estate passing to the widoew and her then getting a life interest in 50% of the balance, reverting to the children when she eventually dies.

 

All in all, not a good scenario.

 

So, what you need to do is:

 

1. Somehow get a copy of the attendance note the solicitors made when they took instructions. This will show all manner of things; such as whether they were made aware of his mental state; if they suspected his mental state; if he was alone when they took instructions (ie is there a risk he was under duress or being unduly influenced etc.) List goes on but you get the picture.

2. Find out of they got a medical opinion on him prior to his executing the will. This is a MUST where (a) an elderly testator with a history of mental illness / dementia is concerbned and (b) where there are competing claims on the estate. It is called "the Golden Rule."

 

If no medical obtained by the sols then you may have case IF there is sufficient medical evidence of his lack mof testamentary capacity. This comes down to affidavit evidence from the deceased's consultant and GP.

 

The big problem here is that even if the Will is challenged, there would be an intestacy situation.This might be better than the whole estate passing to spouse of course. http://www.osborneclarke.com/~/media/Files/publications/services/tax/intestacy-rules-how-an-estate-passes-without-a-will.ashx

 

Another option is for everyone to agree to a compromise and enter into a deed of variation, effectively re-writing his will.

 

Hope this helps mate. You can find specialists in this field on the ACTAPS website.

 

Apologies to any posters above if I have replicated their advice; I didn'ty have time to read the whole thread.

 

DS

[payingonlyencouragesthem]

DS is completely correct in every respect. I didn't post further comment as I assumed from what Vint said that things had wended their way in accordance with the reasonable agreement of all concerned, which can happen. law and intestacy rules not withstanding. However if this is not the case there is a problem and DS's advice should be heeded.