Foster children and probate - right to inherit?

[catinahat]

Hi everybody, apologies again for my lengthy absence (had a few health problems again) Could I ask for your help and collective brains regarding a very difficult/complex situation a very dear friend of mine finds himself in please? This is an outline:My friend was fostered (not sure whether this was a formal/informal arrangement, however, there are records on file as the police/Social Services were involved at the time. Peter was fostered by the man who he came to view as his Dad and vice versa, at the age of around 12/13. Peter's foster father has never married nor has any children of his own biologically. His Dad took him out of an abusive household and took him in as his own son; he introduced Peter to his friends and other extended family members as 'his son'. From that point on, Peter's life improved greatly, he travelled all over the world with his Dad, enjoyed a good standard of living and for the first time, had a secure and loving family environment. Peter is 42 years old and always said of dad, 'I was lucky to be raised by an exceptional human being'. Peter went through school/further education, university etc thanks to his dad. He worked abroad for many years however all over the world, always maintaining his father/son relationship. Three years ago, Peter moved back to the UK for good after becoming on the brink of bankrupcy. He moved back into the home he'd shared with his dad, one reason being that his financial situation had become so difficult he was once again dependant on his Dad. The other and main reason being that his Dad wasnt getting any younger and had suffered a heart attack couple of years earlier, so Peter wanted to be close to hand so he could be there for his Dad in his advancing years. For the past three years, peter has lived with his Dad continuously until his dad had a fatal (2nd) heartattack just one month ago. His Dad had no spouse, no other kids; only 2 older sisters whom he was estranged. The sisters hant spoken to George (Peters dad) for at least 4 years prior to his death. His Dad had served in the RAF in the war and had plenty of friends, but considered Peter to be his only family. The house is paid for and being in Surrey, is worth in the region 0f approx 230,000 -300,000; without anything from the estate being counted at that point. Less than a week after the funeral, Peter recieved a letter (ostensibly from the lawyers for the estate) asking him to 'vacate the property as stated 'under the terms of the will'. My question is, how can they know the terms of the will if it hasnt yet gone to probate? The letter itself (which ive seen) looks to me like something a school kid threw together to make it look like a legitimate legal notice. My concern is that somehow my friend is being conned out of his rightful inheritance by greedy and manipulative family. Im also concerned that if he vacates the property now, before knowing the true terms of the will, it will weaken his position to make a claim/contest, should it come to that. I cannot imagine his Dad would ve left him homeless and penniless, especially in light of the fact they'd always had a good relationship and thought the world of each orher. His dad was always very charitable and gave lots of money to specific local charities and paid for a number of talented youngsters to pursue their specific area of expertise (ie scholarships in music and the arts as well as donating to the local cathedral he'd been an active parishioner of, for many years. My friend was treated as a close family member, was sharing the home with his Dad for three years prior to his dads death (as well as being raised in the same home from the age of 13, to adulthood). Also, because of the threat of bankrupcy, he was essentially dependant upon his Dad immediately prior to his death. Could anyone advise if he would have any rightful claim on his dad's estate IF he hadnt been provided for specifically, in the will? As it stands now, he's on the verge of being made homeless and penniless, because these two sisters seem to be controlling how the solicitors are acting. Peter cant afford legal rep of his own, despite being in full time paid employment. Any advice would be really appreciated. He is granting me power of attorney to act on his behalf in obtaining his childhood records from Social Services with regard to their involvement when he came to live with his Dad at age 12 or 13. I figured that'd be a good start point to prove the 'assumed member of the family' angle, should anyone try to dispute that. The sisters always resented that George fostered Peter (reasons of snobbery reading between the lines) He was the little lad from the neighbouring council estate who did paid oddjobs and gardening as a child, for the man who became his Dad. My friend is the most gentle natured, mild mannered gentleman you could ever wish to meet and has a heart of gold (he helped me recently when I had to go back into hospital and had no one to look after my 14 year old son) he got him on the 200 mile journey by coach and looked after him whilst I was in hospital and safely home when I was out and looked after us both, only a couple of weeks after losing his own dad. It galls me to see these people treat him so shabbily and if there's anything that can be done to help, I'd really appreciate some pointers folks. Sorry for the lengthy explanation BTW. Thanks in ahead Lbeaglers

[catinahat]

Re: Foster children and probate - right to inherit?

H
Hi eveyone, in addition to my earlier message for advice, can anyone tell me if its normal procedure for someone who is sharing a house with another person (ie Foster Dad and son), then when the dad died, the son recieves a letter saying that 'under the terms of the will' he must vacate the home so it can be put up for sale as part of the deceased estate... all before its even gone to probate? How can the terms of the will be known when it hasnt been 'read' or even been probated? How could anyone even know whats in the will until probate? I admit to having very little knowledge on these issues, but it seems a bit suss to me.? Any advice would be most appreciated people :-) Mhttp://www.legalbeagles.info/forums/images/smilies/smilies/yield.gifany many thanks Cat:yield::yield:

[The Debt Star]

Re: Foster children and probate - right to inherit?

Hi Catinahat.

First off, would be helpful if you would use paragraphs as that is one heavy post above and will put a lot of people off reading it mate.

As always with probate issues, we have to clear some questions first.

Q. Was Peter legally adopted by Dad? Not sure if you stated that as I was kinda blinded by the mass of text.

Q. Has Peter searched the house for a later Will? Asked any friends or relations of your father? Was anyone made aware that Dad had a will and did he mention to them benefitting Peter in it? I'm assuming he has looked but hasn't found one. In which case it would be a good idea to write, email or 'phone all the solicitors in his locality to ask if they hold any wills for XYZ living at ABC. They will either say yes or no and are allowed to do that. Point being a later Will supercedes any earlier ones.

Q. Has Peter invested any of his own money and time into that property over the years? If he has then he will have acquired a beneficial (as opposed to legal) interest in it.

Q. Has Peter applied to enter a caveat yet, or a standing search of the probate registry, so as to notify him of any application for a Grant of Probate? This will be 'warned off' by the Executors anyway but it will at least notify him that the Grant is impending.

Q. I take it he has not had sight of the will yet? Has he asked? He is not entitled to see a copy unless he is a residuary beneficiary (which clearly he isn't and they'll probably refuse). However, as I gather he was living with his Dad he will have acquired a benefcial interest in the house at least over that length of time and he must go and see a solicitor imemdiately. The solicitor must then write o the Executors' solicitors so as to notify them of Peter's potential (note potential) beneficial interest. It would also be worth checking the title to see who owns it (he assumes Dad but did he?).. Also getting asolicitor to place a Restriction in the title viz z viz any benefciial interest he has.

The fact is, unless Peter was legally adopted then he has no claim under the Inheritance (Protection of Family and Dependants) Act 1975. That does extend to non-natural children if they are dependant on the deceased and treated as "a child of the family" but sadly not for a 42 year old who is otherwise independent of the deceased. I assume Peter is not disabled or mentally incapacitated in any way? Different advice if he is.

[catinahat]

Re: Foster children and probate - right to inherit?

Hi Catinahat.

First off, would be helpful if you would use paragraphs as that is one heavy post above and will put a lot of people off reading it mate.

My apologies Debt star

As always with probate issues, we have to clear some questions first.

Q. Was Peter legally adopted by Dad? Not sure if you stated that as I was kinda blinded by the mass of text.

Not adopted, but the Social Services and police were involved when he was initially fostered by his Dad

Q. Has Peter searched the house for a later Will? Asked any friends or relations of your father? Was anyone made aware that Dad had a will and did he mention to them benefitting Peter in it? I'm assuming he has looked but hasn't found one. In which case it would be a good idea to write, email or 'phone all the solicitors in his locality to ask if they hold any wills for XYZ living at ABC. They will either say yes or no and are allowed to do that. Point being a later Will supercedes any earlier ones.

He saw a will his Dad had left over twenty years ago; in which his Dad had bequeathed £20,000 to him (is that the right term?) at that time he was more financially secure and it was understood that the sum was more a token, than a neccessity at that point in time.

However, his Dad made a will more recently and the person appointed as executor, an elderly lady neighbour who was a friend of his Dad's but never liked Peter. This will is supposedly with a solicitor and the estate is supposed to be going to probate imminently.

The strange thing is he got this letter, ostensibly from the lawyers acting on behalf of the estate, which was basically asking that he vacate his home and he'd only been allowed to stay there die to his Dad's generous consent... or something of that ilk... I saw the letter for myself and it was pretty callous! (six days after the man was buried!)

Q. Has Peter invested any of his own money and time into that property over the years? If he has then he will have acquired a beneficial (as opposed to legal) interest in it.

Yes. his dad was a self-employed gas engineer and sparky. Peter worked for the business to help his Dad as well as his own job. he didnt take a wage from his dad's company though.

There will be records of payments he made from his bank to his Dad's for maintainance work on the house etc.

Q. Has Peter applied to enter a caveat yet, or a standing search of the probate registry, so as to notify him of any application for a Grant of Probate? This will be 'warned off' by the Executors anyway but it will at least notify him that the Grant is impending.

I don't know what caveat means? I suggested he apply to the probate office to view the will. I'm not quite so trusting that the info he is receiving has any veracity. There is a lot of miney involved and two estranged sisters who disapproved of their brother fostering the council house kid...! They did not see his Dad, nor speak to him or Peter for at least four years prior to his death.

Q. I take it he has not had sight of the will yet? Has he asked? He is not entitled to see a copy unless he is a residuary beneficiary
what does Residuary benificiary ' mean?

(which clearly he isn't and they'll probably refuse). However, as I gather he was living with his Dad he will have acquired a benefcial interest in the house at least over that length of time and he must go and see a solicitor imemdiately. The solicitor must then write o the Executors' solicitors so as to notify them of Peter's potential (note potential) beneficial interest.

He did get a letter (again supposedly from this solicitor) saying he was a beneficiary of his Dad's estate and his Dad had left him £1,000. It just doesn't ring true that his Dad would leave him homeless and penniless at his most difficult financial low that he 's ever been in. His Dad wasn't short of money and ws also very generous. He had a great upbringing from the age of 13 onwards. I worry that somehow these people are keeping the real content of the estate from him. It would be easier to sell the property if he wasn't in it I think? The for sale sign went up one afternoon when he was out at work.

It would also be worth checking the title to see who owns it (he assumes Dad but did he?).. Also getting asolicitor to place a Restriction in the title viz z viz any benefciial interest he has.

Definitely his Dad. He bought the plot of land from the next door neighbiur and built the bungalow himself I understand.

His Dad didnt really have anybody else in his life other than ex RAF buddies and church friends. he had no kids of his own cos when he returned from the war, the love of his life was marrying some other dude. Fostering Peter gave them both a family. He didnt get on with his sisters as he thought they were too snibby and materialistic.

The fact is, unless Peter was legally adopted then he has no claim under the Inheritance (Protection of Family and Dependants) Act 1975. That does extend to non-natural children if they are dependant on the deceased and treated as "a child of the family" but sadly not for a 42 year old who is otherwise independent of the deceased. I assume Peter is not disabled or mentally incapacitated in any way? Different advice if he is.

He wasn't dependant in the legal sense; as you say, at 42, he isnt a child. As a child, yes he was legally dependant and his Dad received child benefit for him and there was the usual social service intervention. Would not that count as being an 'accepted family member' treated as a son?

Also that it was a 'given' that his Dad would provide for him when he was no longer around. Peter said there are lots of things missing, passbooks from old accounts etc that he can't find etc.

Unfortunately, his situation is so bad at the moment, he can't affird to pay for a solicitor. I don't think they'd grant legal aid for a civil case would they?

Can I say on a final note to my epic text, that I am very grateful for your comprehensive reply and taking the time and patience to wade through the mass of text.

I shall try to remember to braek it down in future, better still, be more succinct :-)

Sorry about that everyone. Thanks once again. best wishes Cathttp://www.legalbeagles.info/forums/images/icons/icon10.gif

[The Debt Star]

Re: Foster children and probate - right to inherit?

Right. The first thing that springs to mind is the circumstances in which the present will was made.

Consider the following factors (which are not exhaustive, I have tried to focus on the facts as you describe them above).

1. Capacity

First off, there isa presumption of capacity that anyone challenging a will needs to refute. However, age is an issue and with elderly Testators there is the "Golden Rule" that solicitors darwing up wills should follow ie that they should discuss any earlier will with the client AND take instructions in the absence of anyone who stands to benefit or who may have influence over the Testator. Solicitors should also obtain a medical report on elderly Testators if they have any grounds whatsoever of suspecting that the Testor in question may have mental capacity issues connected with their old age or infirmity - or be under duress or undue influence. This is not mandatory but good practice. Massive point for your friend to consider.

2. Knowledge and Approval.

A Testator must know and approve the contents of the will. There is a presumption they do unless there are suspicious circumstances (like a neighbour being appointed Executor? and sisters who have had nothing to do with him benefitting almost exclusively from the will? All depends on the circumstances of each particular case).

3. Undue Influence

Force, fear, fraud, undue influence - if proved all invalidate a will. As mentioned, claims are decided on a case by case basis. In the case of Re Edwards (2007) there was clear evidence that the beneficiary had poisoned the deceased's mind against the beneficiaries of the original will by making untruthul accusations against them, causing the deceased to change her will in his favour.

Ok, with me so far?

So what your friend needs to do is get hold of a copy of the solicitor's attendance note and a copy of their file. This will be done by instructing his own solicitor to take up his case.

Bear in kind also that he may have acquired a beneficial interest in the house anyway, particularly if down the years he spent some of his own money or put some of his own time and energy into home improvements and upkeep of the property. Even if the will is valid he may have some sort of fianncial claim on the estate because of this.

With regard to costs, he will need to speak to a solicitor on funding. 'Phone around and find a solicitor that will meet him for free on a 20 minutes' basis or someone that will see him on a fixed fee basis of say £90+VAT for 30 minutes' advice.

Non-vexacious and non-frivolous probate claims are paid from the estate, not by those bringing a claim. However in this instance as the son was not legally adopted he is not technically a potential claimant under the Inheritance (Provions for Family and Dependants) Act 1975 and as such I do not know whether a claim brought by him would be borne out of the estate. That is a question he can raise with a contentious probate specialist solicitor. If you look up the ACTAPS website there may be a link to local specialists you can approach for that free or fixed fee initial meeting.

That will point him in the right direction and he MUST do so because it is his home (or interest in it) we are talking about here.

All the best mate.

[catinahat]

Re: Foster children and probate - right to inherit?

Right. The first thing that springs to mind is the circumstances in which the present will was made.

Consider the following factors (which are not exhaustive, I have tried to focus on the facts as you describe them above).

1. Capacity

First off, there isa presumption of capacity that anyone challenging a will needs to refute. However, age is an issue and with elderly Testators there is the "Golden Rule" that solicitors darwing up wills should follow ie that they should discuss any earlier will with the client AND take instructions in the absence of anyone who stands to benefit or who may have influence over the Testator. Solicitors should also obtain a medical report on elderly Testators if they have any grounds whatsoever of suspecting that the Testor in question may have mental capacity issues connected with their old age or infirmity - or be under duress or undue influence. This is not mandatory but good practice. Massive point for your friend to consider.

Yes, that makes sense.

2. Knowledge and Approval.

A Testator must know and approve the contents of the will. There is a presumption they do unless there are suspicious circumstances (like a neighbour being appointed Executor? and sisters who have had nothing to do with him benefitting almost exclusively from the will? All depends on the circumstances of each particular case).

Must admit, I thought that VERY odd; even more strange was that the neighbour (who is also executor of the will) and the two estranged sisters, have been in close communication since my friend's Dad's death. Yet other than the couple of terse communications via the estate's lawyer, none of them have made any effort at communicating with Peter.


3. Undue Influence

Force, fear, fraud, undue influence - if proved all invalidate a will. As mentioned, claims are decided on a case by case basis. In the case of Re Edwards (2007) there was clear evidence that the beneficiary had poisoned the deceased's mind against the beneficiaries of the original will by making untruthul accusations against them, causing the deceased to change her will in his favour.

Ok, with me so far?

yup, totally... but how would anyone prove such influence? By virtue of its (usually) insidious nature, its often achieved by subtle remarks and lots of 'intangibles' that alone, would not even raise an eyebrow, but collectively and over time, can have an incredible affect on shifting someone's opinions/perceptions (like subliminal hypnotism in a way..?)

So what your friend needs to do is get hold of a copy of the solicitor's attendance note and a copy of their file. This will be done by instructing his own solicitor to take up his case.

Would that only be possible by appointing a solicitor? Would he be able to write making that request himself? Or would that be information that he'd have to make a legal submission in order to obtain?

Bear in kind also that he may have acquired a beneficial interest in the house anyway, particularly if down the years he spent some of his own money or put some of his own time and energy into home improvements and upkeep of the property. Even if the will is valid he may have some sort of fianncial claim on the estate because of this.

That makes it easy to see why the neighbour and sisters would want to get him to leave the house as soon as possible. Its just a sneaky feeling I have, that the first letter which came (if Im not mistaken), only one day after his Dad was buried, was sent at a strategic time, the day after the funeral? Also, to undermine him/ scare him or whatever... the next thing was finding a 'For Sale' had been put up in his absence and without prior notice. Then they turned up one weekend morning, with a surveyor I think it was?


And the most recent incident, was them getting the phone line cut off (again without any discussion, or prior warning or even to let him know they were intending to do that...

With regard to costs, he will need to speak to a solicitor on funding. 'Phone around and find a solicitor that will meet him for free on a 20 minutes' basis or someone that will see him on a fixed fee basis of say £90+VAT for 30 minutes' advice.

Non-vexacious and non-frivolous probate claims are paid from the estate, not by those bringing a claim. However in this instance as the son was not legally adopted he is not technically a potential claimant under the Inheritance (Provions for Family and Dependants) Act 1975 and as such I do not know whether a claim brought by him would be borne out of the estate. That is a question he can raise with a contentious probate specialist solicitor. If you look up the ACTAPS website there may be a link to local specialists you can approach for that free or fixed fee initial meeting.

That will point him in the right direction and he MUST do so because it is his home (or interest in it) we are talking about here.

All the best mate.

I cannot thank you enough for all the fantastic pointers you've given. Certainly food for thought and moreover, angles that I wouldnt have had a clue about or thought of to advise him about. Really do appreciate you taking the time to respond and for your help. Many thanks , yet again . Have a great weekend :-)

Debt Star, YOU'RE A STAR! :hail:

[The Debt Star]

Re: Foster children and probate - right to inherit?

Yes, he needs to see a solicitor. Although he cannot bring a claim under the Inheritance Act he has a few options; namely:

1. a beneficial interest in the property claim (dependant on factors such as how long he lived there and what he did towards the upkeep / maintanence of the property over the past 30 ish years)

2. a challenge to the will on the grounds of undue influence / duress. To answer your question, this is very hard to prove. As is proving lack of testamentary capacity. Was the testator suffering from any degenerative old-age related illness at the time he made his will? What was his state of mind like?

3. solicitors breaking the Golden Rule

Does he have a copy of the original will (the one he benefitted from)?

His solicitor will ask for a copy of the file / attendance note but that may not be forthcoming. Ultimately it can be made available by the court who would take a dim view of stalling tactics. His solicitor must also place a restriction on the property to prevent its earlier sale until this gets resolved one way or another. He may also place a caveat at the probate registry but I do not think he will because it can be warned off easily by the Executor. Certainly a standing search should be placed at the probate registry to alert as to the issue of the Grant of Probate.

The Executor has legal title to all of the deceased's assets on death; this is granted to her by the will. She can therefore gain access to the house, change the locks and apply to the court for an injunction to remove him. It is therefore imperative that he sees a lawyer with good contentious probate experience so as to discuss his options and costs arrangements. If the solicitor feels that there is good enough grounds to do some digging around into the circumstances of the latest will and/or any beneficial entitlement in the property your friend may have, then he may take the view that costs can be deferred until the end of the matter when funds are unlocked from the estate.

Hope this helps mate and I appreciate your kind remarks.

DS

[catinahat]

Re: Foster children and probate - right to inherit?

Yes, he needs to see a solicitor. Although he cannot bring a claim under the Inheritance Act he has a few options; namely:

1. a beneficial interest in the property claim (dependant on factors such as how long he lived there and what he did towards the upkeep / maintanence of the property over the past 30 ish years)

2. a challenge to the will on the grounds of undue influence / duress. To answer your question, this is very hard to prove. As is proving lack of testamentary capacity. Was the testator suffering from any degenerative old-age related illness at the time he made his will? What was his state of mind like?

3. solicitors breaking the Golden Rule

Does he have a copy of the original will (the one he benefitted from)?



I shall ask him if he has. If that was made with a solicitors would they have copies of earlier wills? Just thinking if it was drawn up with a different law firm it might be difficult to locate any previous ones? Or do all wills that go through solicitors get filed with the probate registry? (sorry, i'm pretty clueless to all this, its a whole new arena...)

His solicitor will ask for a copy of the file / attendance note but that may not be forthcoming. Ultimately it can be made available by the court who would take a dim view of stalling tactics. His solicitor must also place a restriction on the property to prevent its earlier sale until this gets resolved one way or another. He may also place a caveat at the probate registry but I do not think he will because it can be warned off easily by the Executor. Certainly a standing search should be placed at the probate registry to alert as to the issue of the Grant of Probate.

The Executor has legal title to all of the deceased's assets on death; this is granted to her by the will. She can therefore gain access to the house, change the locks and apply to the court for an injunction to remove him. It is therefore imperative that he sees a lawyer with good contentious probate experience so as to discuss his options and costs arrangements. If the solicitor feels that there is good enough grounds to do some digging around into the circumstances of the latest will and/or any beneficial entitlement in the property your friend may have, then he may take the view that costs can be deferred until the end of the matter when funds are unlocked from the estate.

Yes, you'd hope that would be the case, but if the executor isnt 100% trustworthy or has her own views on what should/shouldn't happen and if they are at odds with what the testator was known to have), then the solicitor is only really getting one -dimensional view/story of the situation? (I'm just trying to go through all possible scenarios but hoping it isnt going to come to that) Just so much about this is 'off'

My concern is that if the solicitor is hearing from only the sisters and the executor (all of whom are in contact, the exception being my friend...) then no matter how impartial the solicitor is supposed to be,[I][I]he is as fallible as the next person and if I'm honest, even the tone and wording of the letter (supposedly from this solicitors), was almost rude; certainly not how you expect a professional to be addressing someone who is recently bereaved and literally within hours of the funeral... (The letter must've been typed up at least one day before the actual funeral service)

The bottom line though is you have given me some great pointers and that's a far better alternative than sitting around floundering in the dark. I truly am grateful. Furthermore, to be able to put such complex things into words that a philistine like me can understand, is one heck of an achievement trust me, Lol


Hope this helps mate and I appreciate your kind remarks.

Helps massively!


Nope, just honest remarks :-) Thank goodness for people who are generous with their knowledge :tinysmile_grin_t:

DS

Right. The first thing that springs to mind is the circumstances in which the present will was made. Consider the following factors (which are not exhaustive, I have tried to focus on the facts as you describe them above). 1. Capacity First off, there isa presumption of capacity that anyone challenging a will needs to refute. However, age is an issue and with elderly Testators there is the "Golden Rule" that solicitors darwing up wills should follow ie that they should discuss any earlier will with the client AND take instructions in the absence of anyone who stands to benefit or who may have influence over the Testator. Solicitors should also obtain a medical report on elderly Testators if they have any grounds whatsoever of suspecting that the Testor in question may have mental capacity issues connected with their old age or infirmity - or be under duress or undue influence. This is not mandatory but good practice. Massive point for your friend to consider.Yes, that makes sense. 2. Knowledge and Approval. A Testator must know and approve the contents of the will. There is a presumption they do unless there are suspicious circumstances (like a neighbour being appointed Executor? and sisters who have had nothing to do with him benefitting almost exclusively from the will? All depends on the circumstances of each particular case).Must admit, I thought that VERY odd; even more strange was that the neighbour (who is also executor of the will) and the two estranged sisters, have been in close communication since my friend's Dad's death. Yet other than the couple of terse communications via the estate's lawyer, none of them have made any effort at communicating with Peter. 3. Undue Influence Force, fear, fraud, undue influence - if proved all invalidate a will. As mentioned, claims are decided on a case by case basis. In the case of Re Edwards (2007) there was clear evidence that the beneficiary had poisoned the deceased's mind against the beneficiaries of the original will by making untruthul accusations against them, causing the deceased to change her will in his favour. Ok, with me so far?yup, totally... but how would anyone prove such influence? By virtue of its (usually) insidious nature, its often achieved by subtle remarks and lots of 'intangibles' that alone, would not even raise an eyebrow, but collectively and over time, can have an incredible affect on shifting someone's opinions/perceptions (like subliminal hypnotism in a way..?) So what your friend needs to do is get hold of a copy of the solicitor's attendance note and a copy of their file. This will be done by instructing his own solicitor to take up his case.Would that only be possible by appointing a solicitor? Would he be able to write making that request himself? Or would that be information that he'd have to make a legal submission in order to obtain? Bear in kind also that he may have acquired a beneficial interest in the house anyway, particularly if down the years he spent some of his own money or put some of his own time and energy into home improvements and upkeep of the property. Even if the will is valid he may have some sort of fianncial claim on the estate because of this. That makes it easy to see why the neighbour and sisters would want to get him to leave the house as soon as possible. Its just a sneaky feeling I have, that the first letter which came (if Im not mistaken), only one day after his Dad was buried, was sent at a strategic time, the day after the funeral? Also, to undermine him/ scare him or whatever... the next thing was finding a 'For Sale' had been put up in his absence and without prior notice. Then they turned up one weekend morning, with a surveyor I think it was?And the most recent incident, was them getting the phone line cut off (again without any discussion, or prior warning or even to let him know they were intending to do that... With regard to costs, he will need to speak to a solicitor on funding. 'Phone around and find a solicitor that will meet him for free on a 20 minutes' basis or someone that will see him on a fixed fee basis of say £90+VAT for 30 minutes' advice. Non-vexacious and non-frivolous probate claims are paid from the estate, not by those bringing a claim. However in this instance as the son was not legally adopted he is not technically a potential claimant under the Inheritance (Provions for Family and Dependants) Act 1975 and as such I do not know whether a claim brought by him would be borne out of the estate. That is a question he can raise with a contentious probate specialist solicitor. If you look up the ACTAPS website there may be a link to local specialists you can approach for that free or fixed fee initial meeting. That will point him in the right direction and he MUST do so because it is his home (or interest in it) we are talking about here. All the best mate.

I cannot thank you enough for all the fantastic pointers you've given. Certainly food for thought and moreover, angles that I wouldnt have had a clue

[catinahat]

Re: Foster children and probate - right to inherit?

Yes, he needs to see a solicitor. Although he cannot bring a claim under the Inheritance Act he has a few options; namely:

1. a beneficial interest in the property claim (dependant on factors such as how long he lived there and what he did towards the upkeep / maintanence of the property over the past 30 ish years)

2. a challenge to the will on the grounds of undue influence / duress. To answer your question, this is very hard to prove. As is proving lack of testamentary capacity. Was the testator suffering from any degenerative old-age related illness at the time he made his will? What was his state of mind like?

3. solicitors breaking the Golden Rule

Does he have a copy of the original will (the one he benefitted from)?

His solicitor will ask for a copy of the file / attendance note but that may not be forthcoming. Ultimately it can be made available by the court who would take a dim view of stalling tactics. His solicitor must also place a restriction on the property to prevent its earlier sale until this gets resolved one way or another. He may also place a caveat at the probate registry but I do not think he will because it can be warned off easily by the Executor. Certainly a standing search should be placed at the probate registry to alert as to the issue of the Grant of Probate.

The Executor has legal title to all of the deceased's assets on death; this is granted to her by the will. She can therefore gain access to the house, change the locks and apply to the court for an injunction to remove him. It is therefore imperative that he sees a lawyer with good contentious probate experience so as to discuss his options and costs arrangements. If the solicitor feels that there is good enough grounds to do some digging around into the circumstances of the latest will and/or any beneficial entitlement in the property your friend may have, then he may take the view that costs can be deferred until the end of the matter when funds are unlocked from the estate.

That's an awful lot of power held by one individual... its certainly opened my eyes as to the importance of choosing carefully who you entrust with the care of your life's summary and your loved ones future... y'know?

Hope this helps mate and I appreciate your kind remarks.

DS

Yes, he needs to see a solicitor. Although he cannot bring a claim under the Inheritance Act he has a few options; namely: 1. a beneficial interest in the property claim (dependant on factors such as how long he lived there and what he did towards the upkeep / maintanence of the property over the past 30 ish years) 2. a challenge to the will on the grounds of undue influence / duress. To answer your question, this is very hard to prove. As is proving lack of testamentary capacity. Was the testator suffering from any degenerative old-age related illness at the time he made his will? What was his state of mind like? 3. solicitors breaking the Golden Rule Does he have a copy of the original will (the one he benefitted from)? I shall ask him if he has. If that was made with a solicitors would they have copies of earlier wills? Just thinking if it was drawn up with a different law firm it might be difficult to locate any previous ones? Or do all wills that go through solicitors get filed with the probate registry? (sorry, i'm pretty clueless to all this, its a whole new arena...) His solicitor will ask for a copy of the file / attendance note but that may not be forthcoming. Ultimately it can be made available by the court who would take a dim view of stalling tactics. His solicitor must also place a restriction on the property to prevent its earlier sale until this gets resolved one way or another. He may also place a caveat at the probate registry but I do not think he will because it can be warned off easily by the Executor. Certainly a standing search should be placed at the probate registry to alert as to the issue of the Grant of Probate. The Executor has legal title to all of the deceased's assets on death; this is granted to her by the will. She can therefore gain access to the house, change the locks and apply to the court for an injunction to remove him. It is therefore imperative that he sees a lawyer with good contentious probate experience so as to discuss his options and costs arrangements. If the solicitor feels that there is good enough grounds to do some digging around into the circumstances of the latest will and/or any beneficial entitlement in the property your friend may have, then he may take the view that costs can be deferred until the end of the matter when funds are unlocked from the estate. Yes, you'd hope that would be the case, but if the executor isnt 100% trustworthy or has her own views on what should/shouldn't happen and if they are at odds with what the testator was known to have), then the solicitor is only really getting one -dimensional view/story of the situation? (I'm just trying to go through all possible scenarios but hoping it isnt going to come to that) Just so much about this is 'off'My concern is that if the solicitor is hearing from only the sisters and the executor (all of whom are in contact, the exception being my friend...) then no matter how impartial the solicitor is supposed to be,[I][I]he is as fallible as the next person and if I'm honest, even the tone and wording of the letter (supposedly from this solicitors), was almost rude; certainly not how you expect a professional to be addressing someone who is recently bereaved and literally within hours of the funeral... (The letter must've been typed up at least one day before the actual funeral service)The bottom line though is you have given me some great pointers and that's a far better alternative than sitting around floundering in the dark. I truly am grateful. Furthermore, to be able to put such complex things into words that a philistine like me can understand, is one heck of an achievement trust me, Lol Hope this helps mate and I appreciate your kind remarks. Helps massively!Nope, just honest remarks :-) Thank goodness for people who are generous with their knowledge :tinysmile_grin_t: DS

Right. The first thing that springs to mind is the circumstances in which the present will was made. Consider the following factors (which are not exhaustive, I have tried to focus on the facts as you describe them above). 1. Capacity First off, there isa presumption of capacity that anyone challenging a will needs to refute. However, age is an issue and with elderly Testators there is the "Golden Rule" that solicitors darwing up wills should follow ie that they should discuss any earlier will with the client AND take instructions in the absence of anyone who stands to benefit or who may have influence over the Testator. Solicitors should also obtain a medical report on elderly Testators if they have any grounds whatsoever of suspecting that the Testor in question may have mental capacity issues connected with their old age or infirmity - or be under duress or undue influence. This is not mandatory but good practice. Massive point for your friend to consider.Yes, that makes sense. 2. Knowledge and Approval. A Testator must know and approve the contents of the will. There is a presumption they do unless there are suspicious circumstances (like a neighbour being appointed Executor? and sisters who have had nothing to do with him benefitting almost exclusively from the will? All depends on the circumstances of each particular case).Must admit, I thought that VERY odd; even more strange was that the neighbour (who is also executor of the will) and the two estranged sisters, have been in close communication since my friend's Dad's death. Yet other than the couple of terse communications via the estate's lawyer, none of them have made any effort at communicating with Peter. 3. Undue Influence Force, fear, fraud, undue influence - if proved all invalidate a will. As mentioned, claims are decided on a case by case basis. In the case of Re Edwards (2007) there was clear evidence that the beneficiary had poisoned the deceased's mind against the beneficiaries of the original will by making untruthul accusations against them, causing the deceased to change her will in his favour. Ok, with me so far?yup, totally... but how would anyone prove such influence? By virtue of its (usually) insidious nature, its often achieved by subtle remarks and lots of 'intangibles' that alone, would not even raise an eyebrow, but collectively and over time, can have an incredible affect on shifting someone's opinions/perceptions (like subliminal hypnotism in a way..?) So what your friend needs to do is get hold of a copy of the solicitor's attendance note and a copy of their file. This will be done by instructing his own solicitor to take up his case.Would that only be possible by appointing a solicitor? Would he be able to write making that request himself? Or would that be information that he'd have to make a legal submission in order to obtain? Bear in kind also that he may have acquired a beneficial interest in the house anyway, particularly if down the years he spent some of his own money or put some of his own time and energy into home improvements and upkeep of the property. Even if the will is valid he may have some sort of fianncial claim on the estate because of this. That makes it easy to see why the neighbour and sisters would want to get him to leave the house as soon as possible. Its just a sneaky feeling I have, that the first letter which came (if Im not mistaken), only one day after his Dad was buried, was sent at a strategic time, the day after the funeral? Also, to undermine him/ scare him or whatever... the next thing was finding a 'For Sale' had been put up in his absence and without prior notice. Then they turned up one weekend morning, with a surveyor I think it was?And the most recent incident, was them getting the phone line cut off (again without any discussion, or prior warning or even to let him know they were intending to do that... With regard to costs, he will need to speak to a solicitor on funding. 'Phone around and find a solicitor that will meet him for free on a 20 minutes' basis or someone that will see him on a fixed fee basis of say £90+VAT for 30 minutes' advice. Non-vexacious and non-frivolous probate claims are paid from the estate, not by those bringing a claim. However in this instance as the son was not legally adopted he is not technically a potential claimant under the Inheritance (Provions for Family and Dependants) Act 1975 and as such I do not know whether a claim brought by him would be borne out of the estate. That is a question he can raise with a contentious probate specialist solicitor. If you look up the ACTAPS website there may be a link to local specialists you can approach for that free or fixed fee initial meeting. That will point him in the right direction and he MUST do so because it is his home (or interest in it) we are talking about here. All the best mate.

I cannot thank you enough for all the fantastic pointers you've given. Certainly food for thought and moreover, angles that I wouldnt have had a clue
------------------------------- merged -------------------------------
Debt star, once again what can I say? You are a legend! Thank you so much. I will keep you posted as to how things progress... and no doubt, be needing to defer to your insights/advice again :-)
Have a great weekend my friend

[catinahat]

Re: Foster children and probate - right to inherit?

[SIZE="6"]

Just to update - My friend has now initiated a standing search with the probate registry to view the content of the will as a beneficiary/interested party.

We believe that the estate/will has just gone into probate, or imminently is...




[There is some rather bizarre things going on


with respect to the Executor and the two estranged sisters and the solicitors dealing on behalf of the estate. For example,


the executor (who is also a neighbour) has been entering the house whilst Peter has been at work and removing items from the house. Bearing in mind she can't know definitively, which items belonged specifically to Peter's Dad and which are Peter's


Peter's Property being taken from the house


]Peter has found that items belonging to him have been taken from the home although no prior notice given, nor retrospective for that matter, that the items had been taken ; it was only when Peter had arrived back home and noticed things missing or things had been moved to a different location in the house and he went round to the executors house and asked where specific things had gone and she said she'd thought they were part of his Dad's estate.



Peter has been able to retrieve his property directly by asking this woman outright if she'd removed a specific thing, also that the property was in fact his own and not his Dad's.


Charities who are inheriting from estate allege house price undervalued


The solicitor has written informing Peter that specific charities are not happy with the price that the house been put on the market at;(It wasn't Peter who put it up for sale- he came in from work one day to find the for sale sign there)

and that as beneficiaries of this estate, they want it revalued and also valuation of the property in the house too. ( two points here that just don't seem to ring true... one is that how would these charities even know that they were beneficiaries to this estate when it is only JUST going to probate now? (unless this has been divulged by the solicitor?)

The second point being that, am I correct in thinking that a [
solicitor is not supposed to disclose details about the will before probate? This one seem[/COLOR]s to be saying an awful lot about the will to an awful lot of people... ie approx 3 weeks ago Peter got a letter saying his dad has left him £1,000 (again, very odd in light of the fact a that previous will written out 20 odd years ago ,had said a sum of £20,000) That will cannot be found in the house, however it might, or should've been recorded, it was the same solicitor who drew it up.

I know that the latest will supercedes all previously written ones, however, as The Debt Star pointed out, it proves the intent was there from his Dad, to ensure he was provided for.

Which begs the question as to why he would suddenly change his mind and leave his foster son homeless and penniless?



]Why would the solicitor send a letter to Peter alleging that beneficial charitable organisation are unhappy with the current marketed price that the house has been put up for sale at? Is this normal behaviour of charities who are supposedly named beneficiaries, to start dictating about aspects of property belonging to the estate and which is to be sold to benefit all of the people inheriting?

It all seems too bizarre to be real!!

appears to me that this solicitor is not acting in the most professional manner, the first letter which my friend received from this solicitor, was actually typed up/mailed, two days BEFORE Peter's Dad's funeral! the letter clearly states that 'under the terms of the will, the house is to be sold as part of the estate, therefore they wanted Peter out. Probate had definitely NOT been granted at this point.



[FONT="Arial Black"]The immediate problem here is, would he be better served by staying put in his home and fighting his corner, or should he vacate the property on the 22nd of this month as they want him to and he'd provisionally agreed (though nothing signed and sealed in the legal sense....

My feeling is that he is in a stronger position if he remains in the home and doesnt just roll over and give them everything they want.
I suspect too it would it make things more difficult for them if they have the additional problem of someone living in the house which they want to sell, furthernore, someone who has a legitimate claim for interest in that property, which spans back over 3 decades?

My gut instinct is that he should stay put and get a 'stay' put the house to prevent it from being sold , at least until all these complexities have been unravelled and that the veracity of the will be assured?

The same solicitor was present when this latest will was drawn up and Peter said that his Dad was definitely not himself prior to his death, for quite some time before too... he had become fearful and superstitious, sending off for lucky crystals and numerology charts and astrology readings etc.


Peter has numerous receiots for recorded delivery to these companies/sites etc. His solicitor would have to have been blind and mute to have failed to spot this was not a man in complete charge of his faculties... which makes me think that there been is so many breaches of the legal protocols with respect to this will it doesn't engender a great deal of trust as to the veracity of any of this?


You have a situation where:

* the Executor is behaving in a very surreptitious manner, letting herself into the property when Peter isnt there, removing articles from the home, ostensibly for 'the estate', in any other situation, this would be called 'breaking and entering' and the removal of property would be called 'theft', as its property she had no call in taking.


*The solicitor appears to have contravened protocol and ethics by dislosing facts re. details about the will, beneficiaries and what is bequeathed to the various inheritors.. well before probate had been granted.

*
Furthermore, the solicitor, the executor and the estranged sisters all seem to be privy to information and communicate among themselves, whilst Peter is only ever in receipt of information that is negative and bordering on downright rude. ie notice to vacate his own home as he is in the way of them selling it from under him!!! (pardon my little hint of sarcasm:-)

* Question now is:-So... should he stay or should he go???


* PHONE RECONNECTED - ACCOUNT TRANSFERRED TO HIS NAME


Oh, he managed to get the phone reconnected by BT and an apology, as he explained again the situation about his Dad's sudden death. The account is now in his name; he is also trying to find his own legal representation. I suggested he had little to lose really by contacting one of those 'no-win-no-fee legal services, who deal in complex probate cases. A bit like they do for the national accident helpline. (any pointers in that direction as to any recommended in the Reigate, Epsom, Ewell, Guildford area would be appreciated:-)

*The next thing is to get a delay on the house being sold... so how best to approach this part of the 'saga?' (Have initiated a search/request of records from the time Peter was fostered as a youngster, age 13 to this house, through the Data Protection Act of 1998 - subject access request?)


Once again I cannot reiterate enough my gratitude to The Debt Star in particular, for all help and advice posted through the forum, also to Legalbeagles who have been an invaluable resource not just on this occassion, but many times before.

Thank you and a million thank you's again

Have a great Tuesday Beagle people:-) Cat :beagle

[catinahat]

Re: Foster children and probate - right to inherit? UPDATE

Can I apologise if my previous post this morning is difficult to read?

I'm not too hot at the editing bit of posting and have re-edited it maybe half a
dozen times, in order not to be too daunting looking to read...

Thanks again everyone for your patience :tinysmile_grin_t:

Have a happy Tuesday

[charitynjw]

Re: Foster children and probate - right to inherit?

Hiya cat,

Blimey, what a scene!!

Don't know anything about wills, etc, myself, but it looks like you're getting some excellent advice from TDS.

I have encountered this sort of situation myself - reminds me of vultures circulating in those old cowboy films!!

I hope your friend, with your help, can fend them off.

From what you say, this seems like sheer greed & malice!

Good luck with your battle.

c

[The Debt Star]

Re: Foster children and probate - right to inherit?

Catinahat

I cannot emphasise enough how imperative it is that your friend haul his ass in to see a solicitor ASAP.

This is his home and where he has lived for 3o years we are talking about here. Also his personal property in it.

He should stop fooking about, pull his head out of the sand and get qualified legal assistance.

The standing search will just tell him a Grant has been issued and he'll get a copy of the Grant and Will. But this will not help him. He should consider a caveat to prevent the Grant issuing while this situation gets negotiated 'twixt his solicitor and the executor's solicitor. I wasn't aware matters were so far progressed. Get that meeting with his lawyer arranged. It could be the best £150 he spends in his entire life; or the worst £150 saving if he doesn't and he loses any entitlement he may have acquired in the house these past 30 years or the possibility of challenging the validity of the Will.

Go on the Law Society's Find A Solicitor site and research local firms of solicitors - not probate companies - that specialise in this area of law. Ask them for a fixed fee initial meeting or a free initial meeting if they offer one and take what's offered.

[The Debt Star]

Re: Foster children and probate - right to inherit?

Use this
http://www.lawsociety.org.uk/choosin...asolicitor.law

To answer your specific question, your friend should be moving nowhere until he has taken qualified legal advice. He has potential rights and a potential interest in that house which need to be considered and if proved, quantified.

I still contend that the circumstances surrounding the making of the new Will deserve further scrutiny.

[catinahat]

Re: Foster children and probate - right to inherit?

Catinahat

I cannot emphasise enough how imperative it is that your friend haul his ass in to see a solicitor ASAP.

This is his home and where he has lived for 3o years we are talking about here. Also his personal property in it.

I hear you loud and clear TDS, am onto it in the next five mins... phew thank god for you and LB's ... its a really bad situation for sure and vultures look like pacifist vegans compared to this bunch of greedy, parsimonious, 'fatherless individuals'!!!

He should stop fooking about, pull his head out of the sand and get qualified legal assistance.


Would he be better to stand his ground and stay put in the house (they are doing EVERYTHING to get him out, which makes me think he is in a stronger position if he does stay put; I'n thinking that once they have him out of the house, its going to weaken his legal standing in obtaining that 'stay' and preventing the early sale?

On the other hand, he doesnt want to further jeopardise his position by p8**** off the legal world and shooting himself in the foot somehow?

The standing search will just tell him a Grant has been issued and he'll get a copy of the Grant and Will. But this will not help him. He should consider a caveat to prevent the Grant issuing while this situation gets negotiated 'twixt his solicitor and the executor's solicitor. I wasn't aware matters were so far progressed. Get that meeting with his lawyer arranged. It could be the best £150 he spends in his entire life; or the worst £150 saving if he doesn't and he loses any entitlement he may have acquired in the house these past 30 years or the possibility of challenging the validity of the Will.

Go on the Law Society's Find A Solicitor site and research local firms of solicitors - not probate companies - that specialise in this area of law. Ask them for a fixed fee initial meeting or a free initial meeting if they offer one and take what's offered.

Once again Debt star, owe you a debt of gratitude and really am grateful for yours and anyones help with this (minefield!!!)