URGENT ADVICE NEEDED! Application by my brother for non-molestation order

[TheBereaved1]

Good evening,

WOW! I do not even know where to start with this.

Outline is my brother prevented me from seeing my mother for the last 7 weeks of her life. In that time, I believe he coerced her into changing her will 3 weeks before she died - that's a separate matter.

Yes I was angry with how he was behaving but who wouldn't be although I didn't have much contact in that time. In fact, I would need to check but I believe it was only telephone contact to see how Mum was and even then I spoke with her more often than not.

An application was made to the court today on a without notice basis and it was refused.

The hearing date is a week's time with a time estimate of 30 minutes. I have no idea how they could even listen to my side of the story in that time.

My brother's agent has made a 34 point statement to the court.

Basically, it is largely a complete pack of lie and fabrication. Some of the points I can actually address like the day before my mother died, I went down to try and see her but no-one answered the door so I called the Police. He says that he called the Police. That may well be fact but can I put him to strict proof in this regard? The reason I say this is because he alleges that my partner was hammering on the door. Luckily, she was actually videoing everything!

What he alleges is complete nonsense making claims that I have physically kicked him since I was 12 years old and he was 20 years old. He claims he is a vulnerable person. He does have learning difficulties insofar as his capacity to read and write is limited.

He even goes as far as to make claims that the district nurses and carers were intimated by me. Well as far as that goes. I never met any of the carers because they were only involved in my mother's care after he prevented me from seeing our mother.

Anyway, I do not want to ramble on unnecessarily but I can blow a hole in some of what he has said and the rest is unqualified nonsense. What worries me though is what is the burden of proof on such allegations, I imagine it is fairly low because reading up on it this law is regularly used to protect domestic abuse victims which is what he is largely alleging against me. His ex-wife would tell a different story but she doesn't want to get involved because of her children with him (aged 36 and 38!).

Seeing as I have very little time, how best should I approach this?

Thanks in advance.

[EnglandPi]

Which court criminal or civil?

[efpom]

From your writing, it would seem that you allege that your mother was influenced by your brother to changer her will, shortly before she died - you say that is separate matter, but it could be that your brother's action in making a 'without notice' application for a non-molestation order, is aimed at stifling any enquiry whether there was undue influence. Would that be the situation?

It would, I think, be useful, if you could say more on that and it would also be useful if you could post up the allegations made by your brother, against you.

[TheBereaved1]

Which court criminal or civil?

This isn't my world but Civil I believe. "In the Family Court", "In the matter of The Family Law Act 1996".

He did call the Police 18 days after I left an answerphone message in which he alleged he felt threatened. He never called me back to ask what I meant in that answerphone message.

The Police said there was no evidence that needed investigation after having spoke with me. That was 5 weeks ago.

I think he has simply done this to ruin our Xmas. Why would you leave it so long to apply to the court if you genuinely felt threatened and if he was so fearful why would he invite me to his Church Carol Service? And why would he try to prevent me from carrying our mother's coffin and then stand back, after he had told the funeral director's pall bearers that he didn't want me and one of his sons carrying her coffin, and stand there with a big grin on his face winking at me.

I think this application is vexatious and malicious to say the very least.

Just spoken to a friend on mine and he seems to have some knowledge on some court matters. He says this will be just for a hearing to ascertain whether there is a case to answer? I am not sure. I've never been in any situation before that required me to attend court other than to challenge a Notice of Intended Prosecution for alleged mobile phone use back in 2007?

[efpom]

Look, the court system runs on documents - take a piece of advice - post up, suitably redacted, all of the documents in the matter received from the court. That will help posters on here to get at what this is about, in order to help you.

My writing is not aimed at causing further distress or to minimise your distress over this matter.

[TheBereaved1]

From your writing, it would seem that you allege that your mother was influenced by your brother to changer her will, shortly before she died - you say that is separate matter, but it could be that your brother's action in making a 'without notice' application for a non-molestation order, is aimed at stifling any enquiry whether there was undue influence. Would that be the situation?

It would, I think, be useful, if you could say more on that and it would also be useful if you could post up the allegations made by your brother, against you.

Thank you for your input.

I am currently considering whether to challenge the will on grounds of a) lack of testamentary capacity (which was definitely the case as she was on a syringe driver with morphine 24 hours a day for a good month before she executed her will and b) possible undue influence / fraudulent calumny.

I have had extremely limited contact with my brother since he prevented me from seeing our mother. I would have dearly loved to have sat down with him face-to-face to discuss the will but, as far as I know, he doesn't even know I am going to challenge it.

He most definitely has learning difficulties and says he considers himself a vulnerable person and that "I can only read a small amount and cannot write and therefore this presents me with additional challenges".

He has not lived what anyone would consider to be a normal life.

There are 31 points in his 'First Statement'. It would be a mammoth task to scan and redact them but is this something that would be useful? I will happily do it if it helps me to prepare properly.

On one point in particular, before my mother died he claims that he dialed 999 because I turned up at the house and was "hammering on the door" and demanding to see my mother. I actually took a video of that day from approaching the house to me calling the Police to ask if they can come and get me access to see my dying mother.

He may well have dialled 999 but am I able to put him to strict proof for this hearing or is this hearing just to see if there is sufficient evidence for a court hearing please? The reason I ask is because he couldn't have dialled 999 before I got there unless he somehow had advance notification that I was going. In fact, I would need to check phone records but I may have confided in his son's partner that I was about to go down and try and see my Mum.

Only that will come out in the wash I suppose. My reasoning behind this is if I can somehow send this video to the court before the hearing with an explanation that shows he is lying about "hammering on the day" then they might just dismiss it but...

I think he needs some kind of mental health assessment formally because he isn't well. His statement is largely ridiculous and false but how can I prove that? How can he prove it?

If I have audio recordings and video recordings are they actually admissible in court?

I do not understand what the process is and hence am very anxious about this. I believe he has timed this to be as malicious as possible. The Police back in November (see my reply above to ENGLANDPI") did say that he would be seeking an injunction. I came away and researched it and ignored the fact when I read it would cost him £100000 and it would need to be heard in the High Court. This is clearly not the case! Good old Google.

Thank you for your time. This has totally ruined our Xmas. Right now. I should not be sitting in front of a PC typing.

[TheBereaved1]

Look, the court system runs on documents - take a piece of advice - post up, suitably redacted, all of the documents in the matter received from the court. That will help posters on here to get at what this is about, in order to help you.

My writing is not aimed at causing further distress or to minimise your distress over this matter.

I had not seen your reply as I was in the middle of my response to your 09:44 post. I will look into posting up a redacted copy of the statement at some point today all being well.

I have frantically been trying to contact the court (holding for 65 minutes on hold at which point I hung up) and I have tried a couple of solicitors who are now all on holiday.

Thank you.

[TheBereaved1]

Apart from Names, Case Number, Addresses, what else should I be redacting? Should I redact birthdates? I obviously feel that I should redact as little as possible. However, what if one of his 'supporters' reads this post? Highly unlikely but some of the scenarios are highly particularly.

[TheBereaved1]

Good evening,

The redaction didn't turn out too bad nor did it take as long as I thought it would but I've no idea how to stitch all the photos together.

And I couldn't readily find a post on how to upload photos so I will share them from my OneDrive if that is OK. If anyone can tell me a better way, I will happily look into it. I was wondering whether to somehow turn them into PDF's so they could be scan read more easily.

Redacted Order
https://1drv.ms/u/s!Ar8AkvzZJWl9hNVT...TL9oA?e=nGkKxN

Notice of Proceedings.
https://1drv.ms/u/s!Ar8AkvzZJWl9hNVS...u8mNg?e=n0bdIr

Redacted Application
https://1drv.ms/u/s!Ar8AkvzZJWl9hNVo...KeTWQ?e=PoIGzx

Redacted First Statement
https://1drv.ms/u/s!Ar8AkvzZJWl9hNVp...mLX_A?e=qcGLuz

It seems OneDrive somehow collates them. When you click the link, it opens a folder with the shared photos in. They are not necessarily in order but the two digits at the end e.g. 01, 02, 03 are the order in which they should be viewed.

Thank you in advance.

Would it be an idea if I became a VIP Member? If I did, would all the people who have helped so far still be able to see and advise? More than happy to join if necessary.

Wishing everyone who has helped me with all the stress I have been undergoing recently (and everyone else for that matter) the very warmest Seasons Greetings!

[ostell]

Usually recommended to use the hosting site imgur for documents, and post the link on here

[efpom]

I have now read the documents you put up. I did not give those a close reading, far less an analysis, but it seems from your brother’s witness statement, if that’s what it is, that it is a catalogue of assertions that you have been making his life a misery for a considerable number of years. It is also tolerably clear from the application that he wants nothing to do with you. I assume, perhaps wrongly, that you want nothing to do with him.

What is not clear from your brother’s writing is where he lives. It seems that he either lives on a narrow boat, or lives at your late mother’s home.

My second assumption is that your late mother’s estate is not particularly large, and that her home, if it was owned by her, is the principal asset of her estate.
It seems to me, that your brother takes the view that he has a right to occupy your late mother’s home, and that the purpose of his application, at bottom, is aimed at getting you to stay away from that address.

That may be an attempt, and I speculate here, to “solidify”, any claim that he may have to occupy, or be the owner of, your late mother’s home.

That claim can only be a legal right, if the right is given in your late mother’s will.
If my writing above is tolerably close to the true position, I think the right order from the court is a) that you each say away from the other, that b) neither of you enjoy any right to occupy your late mother’s home until after distribution of the estate to the beneficiaries, in accordance with your mother’s will, is finalised. In that context, it is the executors of the estate who are responsible for safeguarding and maintaining the property until then.

The other issue is whether your mother’s will was made under duress-the duress coming from your brother.

I am neither an expert in family law, or estate law, but others in this forum certainly are.
I think it would be useful, therefore, if you could give your views about whether what I’ve written is close enough to the true position.

[TheBereaved1]

I have now read the documents you put up. I did not give those a close reading, far less an analysis, but it seems from your brother’s witness statement, if that’s what it is, that it is a catalogue of assertions that you have been making his life a misery for a considerable number of years. It is also tolerably clear from the application that he wants nothing to do with you. I assume, perhaps wrongly, that you want nothing to do with him.

What is not clear from your brother’s writing is where he lives. It seems that he either lives on a narrow boat, or lives at your late mother’s home.

My second assumption is that your late mother’s estate is not particularly large, and that her home, if it was owned by her, is the principal asset of her estate.
It seems to me, that your brother takes the view that he has a right to occupy your late mother’s home, and that the purpose of his application, at bottom, is aimed at getting you to stay away from that address.

That may be an attempt, and I speculate here, to “solidify”, any claim that he may have to occupy, or be the owner of, your late mother’s home.

That claim can only be a legal right, if the right is given in your late mother’s will.
If my writing above is tolerably close to the true position, I think the right order from the court is a) that you each say away from the other, that b) neither of you enjoy any right to occupy your late mother’s home until after distribution of the estate to the beneficiaries, in accordance with your mother’s will, is finalised. In that context, it is the executors of the estate who are responsible for safeguarding and maintaining the property until then.

The other issue is whether your mother’s will was made under duress-the duress coming from your brother.

I am neither an expert in family law, or estate law, but others in this forum certainly are.
I think it would be useful, therefore, if you could give your views about whether what I’ve written is close enough to the true position.

Thank you for your analysis.

I'll keep this concise as time of of the essence.

When he stopped me from seeing Mum, I pretty much decided within the space of a month that that would be it although I have recently sent texts to some family expressing my concerns that we need to collectively keep an eye on him because he is likely to be taken advantage of. In a way, perhaps I should let that go and leave him to 'the wolves' as he has caused, I believe, irreparable hurt but they say time is a great healer. This whole episode has tarnished my mother's memory. It is truly awful - the lies about her not wanting anything to do with me. I did start to wonder at one point if it could be true.

I only became aware in October that the lies he had been propagating about me have been propagated for some years.

I've no idea where he lives. He had previously said that once Mum died, he would not spend one more night in the property and that he would go back to his canal boat. This clearly has not happened and because of the distress he caused me by preventing me from seeing Mum I wanted him out of the house immediately so I emailed Mum's solicitor to tell them to get him out. They skirted the issue for a whole month despite being the executors and sending me a copy of the will in the last week of November.

Estate is worth between £280k (conservative) and £370k (top end Zoopla estimate - very unlikely unless some repairs and tarting up were done). House is the principal asset. I believe he was taking money out of Mum's bank account without her approval using her card. I did report this to her bank. There was No EPA or LPA. There was one written back in 2007 but both him and my Aunt discouraged me from registering it. I wish I had though it was unlikely to succeed due to timeframe and fact they had to write to him and Mum.

I think he takes the view he has a right to stay there because he currently has 5/6ths share very approx.. Other beneficiaries largely are meddlers, bar one, and are very likely to be complicit in poisoning Mum's affections (but challenge is very likely to rely on mental capacity, easy-ish to prove, and fraudulent calumny - getting easier to prove if this case gets kicked out I'd imagine as I now have his written statement which paints this false narrative of me).

I have video and audio recordings which show Mum behaving 100% fine and natural with me (video is actually quite fun in parts). It shows her asking how my Aunty is with me and Mum saying that she will tell her to forgive and forget Boxing Day argument last year).

I have email from solicitor stating that they have an email dated 7th December stating that he has vacated the property and that they have changed the locks. I have since asked them for proof of date of lock change.

I have placed a caveat on the probate. I would ideally like to sit down with my brother and two mediators (one his, one mine) who are legally qualified and independent to make it crystal clear to him that if he doesn't stop this game that he will likely end up with nothing as my solicitors (not yet instructed) will likely end up 'wiping the floor' with Mum's will and thus his share. My assumption may be wrong. I have been potentially offered a CFA agreement with a Legal 500 company which, with his attitude, could easily end up in court costing £50k (+100% success fee) and the court may award 75-80% costs apparently due to his anticipated behaviour in the process. Of course, they will only offer No Win No Fee if they think it is meritorious.

I think if I could knock the wind out of his sails in this case it might make him think long and hard when the will challenge comes around.

I am procrastinating on the instruction of the solicitor for the will validity at present and I also do not want to really reveal in this upcoming hearing that I am going to be challenging the will but this now may have forced my hand. I have emailed Mum's solicitors myself asking for copies of all her wills they hold so I can see what has gone on since she switched to them in 2013.

As for your 'proposed' court directions:-

a) I have been nowhere near him and wouldn't without video evidence other than 29th November meeting and the funeral. I have 3 calls to him in October that were connected to ask how much was doing? And only the 1 call in November when I was told by another family member that it was the end in which I left 'the message'.

b) Fully agree (with the exception of security checks)

Just a thought, if I send an email to the court before the hearing and mark it private, confidential and privileged, can I make the judge aware that I am going to be making a claim against the estate for will validity and fraudulent calumny and that I want to keep that information private in the hearing.

Would this enable him to make an appropriate direction?

I almost want to say in the meeting that if my brother agrees to relinquishing part of his 5/6ths to restore me to my rightful position of 50% of the remaining residue then I will not refute all allegations? Is this wise? Is it even possible? Does it sound like blackmail? I don't think I will be able to convince him that Mum's will is unsound if he has had undue influence but if he truly suffers from the levels of anxiety that he says he does then he certainly will not understand the levels of stress a trial is going to place on him for this non-molestation order. He knew she was of unsound mind but at the last meeting he had already decided on a revised gameplan that she didn't have dementia.

[TheBereaved1]

efpom

Please see above from yesterday but also I have just found out that my brother was told at the funeral that I will be challenging the will so it seems that this very much may be an attempt at stifling the challenge as you previously suggested.

I am so annoyed with myself for making it known to the one family member that I thought I could trust.

That family member has actually blocked me on WhatsApp now for some unknown reason. She had an argument with my brother's ex-wife on Xmas Day and blocked her too. This has just come to light.

Should I be tempted to text her and ask if she told my brother about the will challenge at the funeral? What a nightmare.

[TheBereaved1]

Please can someone review this position statement in response to the witness statement (in PDF format)

Thanks in advance. I now have only 39 hours before the hearing and am without legal representation.

https://1drv.ms/b/s!Ar8AkvzZJWl9hNdFgRiBWNsKsZUuEA

[TheBereaved1]

Well that didn't go at all well.

Never been in this situation and was unable to appoint legal representation because of the time of year.

Magistrate asked me to make representations and basically cut me off whenever I spoke!

I did however receive some advice from a friend, 18 hours prior, who is a barrister for the CPS and he said that I should give undertakings with the caveat that he hadn't practised in the Family Courts for 20 years. I also managed to speak with a solicitor an hour before the start of the remote directions hearing and he said ask for a cross-agreement. I decided to go with their advice and a 12 month NMO was levied on the basis of no facts. They wouldn't table another interim hearing so we could get to the bottom of the lies in my brother's statement (the copy I have is unsigned) but in fact tabled a contest hearing for half a day later this year!

During the 'telephone' meeting which should have been CVP but they couldn't get the system to work, the presiding judge (A lay magistrate) declared that we should all announce our names for clarity at any time we spoke. There was another magistrate and a legal adviser (who I assume was the only qualified person in the room bar my brother's barrister). I couldn't clearly hear what this other magistrate was saying and at no point when whoever was speaking bar myself or my brother's barrister did anyone declare who they were so I had no idea who was speaking at any given time bar myself or my brother's barrister.

Meeting was tabled for 30 minutes. It ended up being an hour then adjourned for 2 hours because my brother's barrister had issued a position statement which they had not sent to me. The court adviser then contacted me 30 minutes before the re-adjournment time and tried to railroad me into starting the meeting 30 minutes earlier because they had done all they had needed to do for the day and wanted to go home. It was New Year's Eve after all.

I resisted the earlier start because I was trying to communicate with the solicitor who had contacted me before the initial meeting.

Since then, I have been in touch with the court twice and it was agreed in the hearing that the barrister would produce the order. To date, I have not received any draft, copy or otherwise.

I have his email address. Is this any acceptable communication to my brother's barrister?

"Dear Sir,

It is my understanding that the court is still awaiting a draft order in respect of the above case.

Please can you advise why there is a delay in the production of this document as it is my understanding that you agreed with the magistrates in the meeting that you would produce the documentation.

When can I expect to receive this documentation?

Yours faithfully,"

He just seems to be dragging his feet for no good reason. Why do courts allow opposition barristers to produce documentation? Seems odd to me as an lay person.

Am I able to ask the court if the witness statement with the application form was actually signed ie the copy they have? Because it is full of lies and this is tantamount to contempt of court I believe. My brother's witness statement would be good evidence in my challenge of the will on the basis of fraudulent calumny because he has clearly been feeding these lies to everyone around him for years.

Someone on one of my posts said they believed he could be applying for this NMO to stifle the will challenge and I believe they are right because I spoke to his ex-wife the other day and she said "I cannot believe he came up smelling of roses yet again!" because he has been telling people that he's won a court case and that he is buying a house because I have lost and that I won't be challenging the will.

Obviously this causes me great concern.

As there is a probate caveat in place, can I rest assured that unless it is warned off nothing can be distributed?

Personally, I think he is just trying to save face. He must surely be aware that he has to appear in court and provide evidence that reinforces his witness statement? He cannot be that dim.