Should we contest a will?

[Andym386]

Hello,
I'm hoping someone can suggest the best course of action with a will dispute that my 2 brothers and I have.
My father passed away in May 2016 leaving his second wife (of 42 years), our step-mother, a widow.
She has two sons from her first marriage, and in their joint will the five of us were equal beneficiaries.
Our step-mother had dementia, and was unable to easily care for herself and soon after becoming a widow her sons made the decision to put her in a care home.
She passed away aged 87 in May 2018 and it has now come to our attention that she changed their will in February 2017, writing out myself and my two brothers and making her sons joint beneficiaries. One of her sons has a criminal record and has spent two periods in prison for sexualities offences, a result of which is being divorced by his wife and being denied access to his daughter. Consequently he has apparently accumulated some large legal bills. It seems that he may have persuaded his mother to change the will with the intention of obtaining more money to cover his costs. I appreciate he can't have known that she was going to die a year later but she was 87 and not in the best of health so it was inevitable sooner or later.He is hardly in poverty as he owns a number of properties which he rents out, although he is the type of person who could sell a good sob story to anyone. After her care home costs have been paid pretty much all that was left of the estate was their house which has now gone on the market, and is expected to be split between her two sons.
The questions I would like to ask is are we in a favourable position to contest the will? Would we just be wasting our time and money? Are the reasons behind the changing of the will going to be difficult to prove? Are there any 'no win no fee' options in this scenario? What is the time limit for us to contest?
Our father would be absolutely livid if he had known what was to happen, but legally do we have a leg to stand on?

Any advice would be greatly appreciated.

Many thanks

Andy.

[Peridot]

Hi AndyM386,

Sorry I missed your post and I've been away for a couple of week too.

What a sad state of affairs and galling for you and your brothers.

You mention that your step mother became ill with dementia, when was this? How badly was she affected and what was her mental state in February 2017. Just because someone has a diagnosis of dementia, doesn't mean they do not have capacity to provide will instructions and understand the effect of their will. People with mental health issues/disabilities and degenerative brain disease can have times of lucidity where they are perfectly aware and able to provide instructions, understanding the effect the Will would have. This is the capacity needed to legally ensure the validity of a Will.

Do you know if a solicitor/will writer prepared the Will? If they did then they should have prepared detailed notes on your step mothers capacity to provide instructions, her understanding of the effect of the Will and also documented her reasons for changing the Will, advising her of any potential issues that could arise. What is known as a Larke v Negus request can be made of the lawyer to provide their notes in relation to the will instructions and the will signing.

Of course a person is entitled to leave their estate to whoever they wish and it can be a risk with spouses and second families that this sort of scenario can happen after the one spouse has died.

The other issue that may arise causing someone to change their Will could be where they are unduly influenced by another person. This can be very difficult to prove and I would suggest if this is what you suspect then you should seek some face to face advice to get some pointers on the sort of things you would need to demonstrate this to prove it.

Under S1 of the Inheritance (Provision for Family & Dependants) Act if you and your brothers were treated as children of the family you would have the requisite standing to bring a potential claim against her estate:-

• s1
  (d) any person (not being a child of the deceased) [who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family]

However there are strict time limits in which to bring a claim (6 mths from the date of grant of probate, which can be extended but only in exceptional circumstances).

I would recommend preparing a list of the relevant facts and dates of events and seeing a specialist contested probate lawyer. You can often get a free half hour or reduced fee appointment to discuss options. Claims can be stressful, time consuming and expensive but I would suggest it is worth looking into the options in this case. and at least obtaining confirmation of whether your step mother had capacity to instruct this will to be prepared and retained capacity when it was signed. If your step mother had already had a diagnosis of dementia a sensible lawyer would obtain a report confirming their client had capacity to provide instructions etc.

If probate has not yet been granted it may also be sensible to discuss having a caveat or standing search applied to prevent or at least notify you of when probate is about to be granted so you don't miss any deadlines for an application if this became necessary at a later point. This may help

https://www.gov.uk/wills-probate-inheritance/stopping-a-grant-of-representation

Do post again if we can explain things further or try and give any more pointers