Contested Will - opening shots

[Cem]

Can anyone help on this. This concerns a Will of the father that has made a single person, who lived with the father, as sole inheritor of the house that she lived in with her father, for the last 8 years in order to look after him. The residual estate is to go to another sister, but in reality, this will mean practically nothing. The final Will was professionally drawn up, and was supplemented by a golden rule letter from his Doctor regarding his capacity. There is also a covering letter confirming his wishes although acknowledging that his intentions could disappoint. He did, however, change his Will 3 times over the last 8 years, from a position of equality amongst his 3 grown up children, to his final Will where it has almost entirely in favour of the one daughter. There are detailed case notes which clearly indicate that he wanted to give his house to the one daughter.

I am an executor for this estate of circa 150K – the grant of administration has been made following a caveat and warning off letter being sent. I have now received a 'dossier' from the legal team representing the largely disinherited sister that I believe is intended to scare and intimidate. It arrived in a large Lever Arch file, and has accused the sister who has been left the house of the most horrendous undue influence, stating that the father lacked capacity, and that the he had no right to change his Will in the such a fashion. Most importantly, its contents are almost entirely incorrect or irrelevant, and it’s claim of facts are trivial and make massive assumptions, e.g., because one sister lived and cared with the father for 8 years means she automatically manipulated the situation to the extent that the Will was changed in her favour. It makes specific demands on the estate, yet also offers ADR. Everything is topped with date demands for me to reply.

The receipt of the dossier did at first scare and intimidate, it was like ‘here is a large legal machine that has arrived to crush you so you better give in’, but I’m now thinking that this is purely part of the tactics from a claim that is legally weak.

The question is, what should I do next? I need to protect the integrity of the Will, yet I don’t want to take actions that may prejudice the eventual outcome away from the clearly stated wishes of the Deceased.

[Kati]

Tagging Peridot des8 for help xx

[des8]

from what you describe it could well be that they are pushing for a mediated settlement.
In other words they know that protracted contentious litigation will cost and so diminishing the estate that the other beneficiary will agree a settlement
Peridot is the one to advise you on this, but you might have to wait until after the weekend

[Peridot]

Hi Cem,

I'm sorry to hear of the issues you're facing following the death. I suspect that you are correct that the 'dossier' has been sent to scare you into making a decision. However proving undue influence is difficult and it would be for the other party to bring a claim and prove there had been undue influence, if they are serious. You have the Grant so did the other party not provide sufficient evidence of a valid claim at the warning off stage to enable the Grant to be issued?

You have mentioned that the solicitors who drew up the Will had obtained a 'golden letter' which I assume demonstrates that the father had sufficient capacity to have the Will prepared in the way he wished. Has the other party's solicitor made a Larke v Negus request (basically requesting the Solicitor's notes from when they were instructed to draft the most recent Will)? Have they been provided with the copies of the solicitor's papers if such a request has been made? You an of course provide the solicitor's details to the other party's solicitor who can then make the request if they wish.

IF they were to make a claim on the estate then you would be expected to try mediating a settlement which is recommended as defending a claim that may have some merit can be very costly which can ultimately reduces the size of the estate for distribution in any event.

Did the daughter wish to remain in the house or would she be minded to go against her father's wishes to a certain degree and offer to make an agreement about the estate with her sister?

I would suggest responding with the solicitor's details who prepared the Will if they have not had them already. In addition I would leave the option of mediation on the table at this stage. You could also get some face to face legal advice on the options available to you from a contested probate specialist. You may be able to get a free half hour or reduced fee initial appointment for this. It would be worth completing a timeline of events before meeting a lawyer to discuss this just to keep matters on track and make best use of your time. Bullet point the issues the other party has suggested trying to keep the emotion out just stick to the facts.

[Kobi]

Hi, I was interested in the above, for I'm going through a complex issue related to a tenancy in common. Me having a 50% share held in interest.
My question really is - can one start proceedings of proprietary estoppel whilst the individual is alive or after their passing?

[Cem]

Thanks for your reply, which is most helpful. After the Warning Off letter they failed to submit an Apprearance, and we don’t know if this is tactical or due to neglect. The ‘dossier’ did warn us to cease all Probate activities, but we don’t know if the other side actually know that Probate has been granted.
As Executor, from the very start I have instructed my legal team to be fully transparent and open to any request that received. And yes, a Larke v Nugus disclosure has been made (which I have been charged for!!), and extracts from it were included in the ‘dossier’

As I have previously indicated, the ‘dossier’ was, intentionally, very aggressive, but the actual allegations of undue influence and, at the same time, lack of mental capacity, are a wild spray and pray attack without any evidence whatsoever. It also contains demonstrable lies, and is littered with factual inaccuracies.

At its heart is the, crazy, assumption that because the sister lived with, and cared for, her late Father for nearly nine years in the house that he has bequeathed to her, she must have, in some way, have been systematically manipulating her Father to change his Will in her favour.
I’ve done a little Doctor Google and, interestingly, the ‘dossier’ seems to be formed around the Schrader v Schrader case by seeking to establish:

Vulnerability
Dependency
Forceful Personality
Inaccurate reasons given to change the Will
And, the desire to ‘even things up’ between Sisters who are effectively estranged

The hostile nature and wild allegations in the ‘dossier’ have really upset the defending Sister, and she is not currently inclined to be particularly generous in terms of making an offer. There is also the principle of doing what’s right, and defending what we know to be her late Father’s actual intentions when making his final Will. But she does understand the need to be pragmatic.
I’ll keep you posted on how things progress as it may prove to be useful to others in the future.

[Peridot]

It does seem strange if the other party has a lawyer and they believe they have a decent case worth pursuing that they didn't put in an appearance. Maybe they hadn't had legal advice at that stage but may be worth bearing in mind.

Personally I wouldn't blindly continue with administering the estate other than dealing with debts but no final distributions maybe until you have a better idea where this is going? As far as the Schrader case is concerned all these types of cases depend very much on the facts of the particular situation.

Hopefully they are just trying their luck. If they had legal advice at the time the caveat and warning were dealt with, the Court would probably not be particularly sympathetic that a claim has not then been forthcoming. As I mentioned however these matters can be both stressful and costly so if at all possible keep a door open (even if only a crack) and do appear open to mediation.

It may also be useful to go through the points the other side have made and if possible note any evidence or points that support your contention that this is a perfectly valid Will. If there are any friends or neighbours of the father who may have some further knowledge of why he made the decision he did it may be useful to bear them in mind should you need to obtain any supporting evidence at a later date.

It may be you need some face to face advice if a mediation happens just to be certain of your arguments and to also help gauge the risk of matters not being found in the estate's favour, if a claim were made to the Court..

[2222]

I'm puzzled a bit by this. The executor does not appear to be a beneficiary of the estate to any significant extent. Isn't his role, if there is a dispute, to remain neutral and let the beneficiaries slug it out?

[Peridot]

The executor is the proponent of the Will and therefore is responsible for defending its validity if challenged. They should also be endeavouring to fulfil the wills direction. So they are very much involved if it is challenged.

[Yamaha121]

Please comeback and update us with any developments Cem I would certainly appreciate it as I may be in a similar situation

[lukewarm]

I was in a very similar situation a year or so back.

My parent died and I was sole executor and major beneficiary,two other siblings who never bothered with the deceased challenged the will.

At first they appointed a local solicitor saying they were going to administer the estate and asking me for bank statements,death certificate etc.

I totally ignored this request as I was under no obligation to provide anything. I had already been granted probate.

This first solicitor sent a further two letters saying that I should not apply for letters of administration "without their authority."

So, I wrote back simply saying,"There is a probated will."

After a few more weeks another,more aggressive,solicitor wrote to me alleging all sorts of things.The usual undue influence,unsound mind nonsense.

Again, I ignored all their threats of court action.

They then threatened me with a Part 36 offer to split the estate three ways equally - then all my problems would disappear.

I ignored this letter too.

Then,they initiated county court action to force me to supply a Larke/Nugus letter explaining the circumstances surrounding the preparation of the will.

I supplies a sworn affidavit giving these details to the court.

The solicitor then thought he had cancelled the court hearing but it went ahead with neither party present and the judge found in my favour and no costs were awarded to them.

The solicitor then threatened me with more court action if I did not pay their costs to date which 'would more than double if it went to court as they were going to appoint a barrister' (Actually,the barrister was a complete waste of space in the court and I derived great pleasure smiling at him as we were both leaving the court - toss*r!)

Again, I ignored their threats but instead just turned up at the court and I won the case again (Application dismissed,no order as to costs)

So,my advice to you would be to totally ignore any threats from the other side until it becomes legal and the court get involved.

Call their bluff,all their letters and "the file" is just designed to try and frighten you into making them an offer. -don't respond !

Don't forget that you have a duty to the testator to carry out his wishes to the letter and in my case I was very careful not to spend a single penny of the estate's money in defending their threats.

Console yourself with the knowledge that every letter you receive will be costing them quite a bit of money.

[MIKE770]

So it continues = Solicitors dishonest intentions, then run when caught out (many inside for that)

[Cem]

Here is a little update. I have instructed an LLP to respond to the ‘dossier’ and other hassling letters that were received. In addition, I have applied for the Deceased’s medical records which I intend to share with the other side. I have also kept the door open for ADR, whilst pointing out that there is currently little reason for this based upon the, so called, claims of undue influence and/or lack of capacity.
The Will file confirms that the Deceased used his regular Solicitors, the interview was with two senior Solicitors, he arrived complete with a ‘golden rule’ letter from his GP, and signed a covering letter confirming his intentions.
Interestingly, the ‘dossier’ references ‘confidence and trust’, on a number of occasions, as perhaps the vehicle for undue influence, and I’m guessing that they intend to press forward using this.
As to the alleged lack of capacity, I’m hoping the disclosure of medical records, together with his golden rule letter, will see an end to this. I’ve looked at the medical evidence provided for his Inquest, and there is no mention of any mental issues.
It’s like an expensive and stressful game whereby the other side throw bricks, dressed up in legal words, and we calmly return them through the post with a polite ‘no thank you’.
Will keep you posted

[C Sider]

Please comeback and update us with any developments Cem I would certainly appreciate it as I may be in a similar situation

Interesting post i am also in reciept of a Larke v Nugus letter. I will try to deal with it in the manner you dealt with it Lukewarm.

[JJW]

Nobody kept us updated on the outcome(s).