Incoming Estate Challenge

[Yamaha121]

I made a few posts about the chance of my non included brother making a claim against the estate of which I am executor and beneficiary of.

I have this week had a letter from his solicitor saying and I am paraphrasing it a little.
seek the validity of the will on the grounds of lack of Testamentary Capacity, Undue Influence, and/or want of Knowledge and Approval, together with a alternative Claim for reasonable financial provision under the Inheritance (Provision for Family & Dependants) Act 1975.

So they can see how valid the case is they are asking for a copy of the full estate accounts, the will and any other executed wills, the will file or the address of the solicitor who did it.

If I have made any distributions, and they want me to agree to a Limitation Standstill Agreement and if I dont they will have no option but to issue court proceedings, and that i confirm no
charging/distribution/dissipation will take place or they will apply for a court order for that aswell,

And I have 14days to do all the above.

I am happy to be as cooperative as possible and act as a executor should, personal beliefs about the merits of this and my opinion of true facts aside.

Just not sure if i just go and get legal help now and start racking up the costs or actually give them what they want myself and wait to see what comes back after the Will file as even I have no idea on that as the making of the Will was not known to me till after death.

Hoping Peridot and our other great members can advise.

[2222]

There's plenty of scope to run up an awful lot of costs here, if you go at this hammer and tongs. Some of these cases that go to the High Court (and end up rather embarrassingly in the newspapers!) must cost £100k+++ by the time all the parties' costs are added together.

I, therefore, think you should get legal advice ASAP. But, do so with the idea in mind of making concessions (as a beneficiary) so as to bring this to a reasonable conclusion without spending a fortune on fees. In other words, even if you don't get on with your brother, you may prefer to give him money than paying the same or possibly much more to lawyers.

Does your brother have the money to pay costs if he loses? If not, there's even more reason to settle this ASAP.

[Peridot]

Hi Yamaha121,

Well no surprise I suppose. They are covering all basis, if not this then we'll have a go at that sort of thing. I suppose you can't blame them they will be acting on their client's instructions. Needless to say they may not have the full story!

At this stage it is sensible to allow them sight of what they request. How far are the estate accounts, sorry I've forgotten what stage you were at in the estate administration? If the accounts are not finalised I'm not sure what these offer them currently other than to give an indication of the estate value, but if there is no reason not to provide a copy then it demonstrates you are willing to co-operate. Their request for a copy of the Will is reasonable. It is also reasonable for them to ask for the will file, so if you have the solicitors address I would provide them with it so they can request a copy via a Larke v Nugus request to the solicitors.

Parties are encouraged to co-operate and at this stage they are wanting to see if there is an option to bring a claim and the likelihood of being successful of course. It does mean you need to be open to negotiating a settlement and mediation is encouraged in these matters due as much to the significant costs of going through the Courts to deal.

At this point I would just indicate you are happy to co-operate and that no distributions will be made pending their enquiries. Provide solicitors details if you have them and wait to hear. I wouldn't be putting forward offers until they have decided if there is a potential claim but do maybe consider in your own mind what if anything you would be prepared to offer to settle this matter.

[lukewarm]

So,your brother is neither a beneficiary or an executor of the estate - so he,or his solicitor,has no right whatsoever to see any information about the estate.

That is,they are not entitled to see the estate accounts or the will,they can of course buy a copy of the will from the public web site.

You have no obligation,under the law.to even respond to their solicitor's demands.(They are not a party to the estate)

I have very recent experience of exactly this treatment from aggressive siblings and equally aggressive firms of solicitors and barrister.

Briefly,parent died and I was sole executor and major beneficiary.The other siblings were minor beneficiaries.

Soon after death,they wrote to me saying they were going to administer the estate.This first letter arrived shortly AFTER I had got probate.

I ignored this letter.

Second letter arrived (more threatening) saying I had so many days to respond otherwise court action etc.

I ignored this second letter.

Third letter arrived saying they were now going to apply for letters of administration and that I should not also apply without their authority (Cheek!)

I then chose to reply,I simply said "Stop bothering me,there is a probated will."

All went quiet for a few months.

Then another letter from a different,bigger and much more aggressive,firm of solicitors. Saying they were questioning the validity of the will under the usual undue influence,unsound mind baloney.

Again,I ignored this letter (I was under no obligation to respond)

Then another letter arrived with a copy of a letter from my parent's GP suggesting that the deceased may have had a 'cognitive impairment but they could not say for sure' the solicitor suggested that my parent had dementia because of the GP's letter.And also with a part 36 offer to split the estate equally so that,in effect. all my problems would go away if I signed the letter.

Of course this was just extreme pressure and total lies as I knew exactly how my parent was before death and dementia was not even mentioned on the death cert.

Again, I ignored their latest threat.

Another letter arrived when they said they were applying to the county court to force me to provide a Larke/Nugus letter explaining how the will was made.

I decided to supply a sworn affidavit to the court as it was a DIY will (not the solicitor) explaining how the will was made.I did this myself.

Up to now I had not spent a single penny on any legal costs - why should I,I had done nothing wrong ?

When the solicitor received a copy of my sworn affiidavit they completely dropped their case but they went on to say that they were now seeking costs from me as I failed to respond in good time to their requests for information.

They asked me for a few thousand by return otherwise they would go to court again and these costs would more than double as they were going to employ a barrister (ooh scary!)

I ignored this latest letter and lots of other very threatening letters up to the date of the court hearing.

I just turned up at the court hearing and the judge laughed their barrister out of court - as he said to him "do you want me to throw it out or just dismiss it?"

So,in summary.

I was threatened by my siblings,2 firms of solicitors,a barrister and 2 court hearings.

I didn't spend a single penny in legal costs.

I won both court cases (Both "Application dismissed,no order as to costs")

My advice to you is this:

Don't even respond to their threatening letters - you don't have to as they have no right.They are being aggressive,you be passive.

Don't bother with any legal advice - you don't need it and why should you spend anything

Call their bluff - their letters are just threats trying to force you to respond and make them an offer.You don't have to - you are just executing the deceased's last wishes. These letters will probably continue as they try and ramp up the pressure on you - don't respond.

Only,if and when,they take you to court then you respond. Even then stay strong and hold your course and just carry out your executor duties.

And if it gets to court,don't be alarmed.The judges have seen all this stuff many times before and they know all the tricks in the book.

Remember,solicitors are only after trying to increase their fee income,console yourself with the fact that every letter that they send will be costing your brother money.

Your brother does not have a case, he is being vexatious and frivolous.

Good luck.

[2222]

With due respect, Lukewarm, you ended up providing an affidavit about the way the will was drafted. You could have done this at the outset and saved everyone a great deal of trouble.

[Peridot]

Hi again,
I would point out that we do not know at this point whether brother has a case or not. The purpose of the request is to establish that and it is right that parties co-operate to try and establish whether there is a claim to be made.
All potential claims are different and whatever feels are involved solicitors have to act in their client's best interests which would include investigating whether there is a claim or not. It is important to remember that the solicitors are acting on their client's instructions which in this instance have no doubt been somewhat biased. Sure you can imagine the sort of thing, doting son written out of the Will and sure father didn't know what he was doing.

The disclosure (and for a Larke v Negus request, which will be the next step I expect) is expected to be completed to provide all sides with the correct information needed to establish if there is a claim to answer. There will always be frivolous claims but the Court's encourage parties to try and deal with matters without the need to go through the Court process at great expense and stress to all concerned.

[lukewarm]

With due respect, Lukewarm, you ended up providing an affidavit about the way the will was drafted. You could have done this at the outset and saved everyone a great deal of trouble.

No,wrong.

They only asked for the affidavit when they had exhausted all other avenues (undue influence,unsound mind etc) and this was very much later.

I wasn't out to create any trouble for anyone.

The complainants were the agressors and they were the ones that caused the trouble.

The two judges clearly agreed with me.

In any case,when the other party is clearly extremely aggressive and fishing for information and trying all the tricks just to try and get more money out of the estate then why should I dance to their tune ?

Like in a game of poker,you don't show your hand.

The executor's job is to safeguard the estate's assets and carry out the testator's final wishes to the letter.

It is all bluff trying to get the defendant to crack.

You are very judgemental 2222 when you know very little about the case.

[Yamaha121]

Thanks to everyone for their input sorry its taken me a little time to reply.

With regard to the estate their are two beneficiaries one is a nominated sum and i am then
the sole residual beneficiary.

There are two executors named in the will but the other choose to become power reserved.

The estate is not distributed as a property is also still on the market to sell.

I have had an initial chat with a solicitor who as Peridot advises also says we are expected to
cooperate at early stages, I know it feels like a hard choice of spending money on legal fees or
coming across as you having something to hide if its pushed to a court by not cooperating, I certainly
don't have anything to hide and am only really interested in honoring my fathers wish as a independent
person making a will on his own back and getting the person also named in the will their sum of money.

What has come clear is it seems its not a cheap business for legal assistance to defend a persons will,
The solicitor has told me they will work on a deferred basis with costs being paid once the case is resolved,
I asked about me replying to the claimant letter for information directly vs them doing it, now they obviously want to get some
business but they feel the other party will not likely walk away even if the Will file doesn't give them much to go on
due to the lack of provision possibly having some merit and them acting on no win no fee
and me having the solicitor get involved straight away is only a matter of a few hundred extra in ether case, without going into detail this is a solicitor who is specialized in contentious probate with the relevant accreditations you would expect at a cost in the region of 250 an hour plus vat.

But what i want to know as a 2nd opinion really before I also double check with the solicitor or sign anything
is what is the risk of legal costs coming to per as myself rather than the executor of the estate.

In my mind the worst outcome would be a judge making a will invalid, it going to intestate rules getting split 50/50 between
me and my brother the other person in the Will getting nothing, but then where are the legal bills coming from, from estate funds before its split or from the losing parties 50%.

[Peridot]

Hi Yamaha121,

So the solicitors have suggested deferring payment, not a no win no fee type arrangement. It would suggest that they are more than 50% that you would be successful in any claim. However that doesn't necessarily mean that the cost would come from the estate. This would be up to the Court (if it got that far) and what order they make.

Generally the Court would make a costs order against the loser so they would be responsible for your costs and their own. In those circumstances they could be personally liable for the costs ie they wouldn't come from the estate before it is distributed. The Court could order the estate pay or if you were unsuccessful you could be ordered to pay yours and the other sides costs, which as you are aware could be significant.

As I mentioned though for the solicitor to agree a deferred fee they would generally be pretty optimistic you would be successful so even if the Court made no order as to who is responsible for the costs you would be responsible for your own fees incurred which would presumably come from the amount you receive on distribution of the estate.

As with all claims parties are encouraged to try and sort things out without the need for a final order from the Court and any costs can of course be part of any negotiations between the parties. Hopefully it won't even come to that, a few carefully worded letters may be all that is necessary.
I suspect once your brother's solicitors have reviewed the relevant paperwork relating to the Will he will be advised on whether they believe he has a potential claim and the cost of pursuing it, together with the risk that if he were unsuccessful he may be landed with paying your costs too. This may be enough to stop things progressing and allow the estate to be finalised.

Here if we can give anymore support or guidance.

[Yamaha121]

Thanks for your advice Peridot , I guess it makes sense that the judge would need to make the final call on who pays costs on the merit of each case.

I guess if the losing party who is both the executor and beneficiary loses because they have been proven they did do wrong things like undue influence to get the outcome they wanted then this is very different to an executor and beneficiary who defends a Will openly and in good faith but for whatever reason loses the case for reasons not linked to them but the testator/drafting solicitor etc, This seems to demonstrate exactly why its very important in cases of executor and beneficiary that you remain solely as "executor" throughout any litigations, is that right?

[Peridot]

Unforunately it does come down to the judge on the day so there is always a risk. If it was proved it was due a solicitor's negligence in drafting the will there could be other recourse such as a professional negligence claim being brought against them.

It doesn't mean that executors and beneficiaries should be different people however it all comes down to the fact in the specific case.

The costs issue is never ideal which is why mediation and encouragement to settle matters outside Court are always encouraged to try and keep the costs down.

Your solicitor will advise on the risks as you progress and should keep you informed of the options available at all stages and the cost risks to you in addition to providing you with cost estimates and updates as you go along. If the don't do ask.

[C Sider]

Hi again,
I would point out that we do not know at this point whether brother has a case or not. The purpose of the request is toHi i have read your advice on will disputes on the forum . Can i ask your advice on my situation i am executor and main beneficiarie to my late uncles will . Whilst in hospital my uncle wanted to change his will . We asked the solicitor who drafted his old will if he could come to the hospital and discuss my uncles request. The solicitor visited my uncle and had a meeting which was private between them both. The solicitor could not seem to understand my uncle who had throat cancer . The meeting resulted in my uncles wishes not been acted on . So to move things on my uncle agreed to me drafting a new diy will with his new wishes . He signed a letter informing his solictor he no longer required his services . The new drafted will was signed and witnesed by two medical staff who were not involved in his care . He had full capacity and knowledge of what he was doing . The change to the will was to remove several charities who were to recieve the residue of the estate after bequests were paid to me my brother and 2 cousins who still remain on the new will. His new will was granted probate in February . I have now recieved a Larke v Nugus letter from a firm of solicitors who say they are representing the charities that were named on the old will. The letter also mentions my contact with the solicitor who drafted the old will and the fact that my uncle was in hospital at the time when the new will was drafted . My uncles new will were his last wishes made because that was what he wanted . My uncle was still driving his car a week before he went into hospital and had full capacity up to the day he passed away about 3 weeks after he made his new will. My question to you his how should i respond to the Larke v Nugus letter. The will is close to been dispersed to the named beneficaires i have read that 21 days to respond to the letter is acceptable. Thank you if you take time to read this and reply with your thoughts.
establish that and it is right that parties co-operate to try and establish whether there is a claim to be made.
All potential claims are different and whatever feels are involved solicitors have to act in their client's best interests which would include investigating whether there is a claim or not. It is important to remember that the solicitors are acting on their client's instructions which in this instance have no doubt been somewhat biased. Sure you can imagine the sort of thing, doting son written out of the Will and sure father didn't know what he was doing.

The disclosure (and for a Larke v Negus request, which will be the next step I expect) is expected to be completed to provide all sides with the correct information needed to establish if there is a claim to answer. There will always be frivolous claims but the Court's encourage parties to try and deal with matters without the need to go through the Court process at great expense and stress to all concerned.

Hi i have read your advice on will disputes on the forum . Can i ask your advice on my situation i am executor and main beneficiarie to my late uncles will . Whilst in hospital my uncle wanted to change his will . We asked the solicitor who drafted his old will if he could come to the hospital and discuss my uncles request. The solicitor visited my uncle and had a meeting which was private between them both. The solicitor could not seem to understand my uncle who had throat cancer . The meeting resulted in my uncles wishes not been acted on . So to move things on my uncle aggreed to me drafting a new diy will with his new wishes . He signed a letter informing his solictor he no longer required his services . The new drafted will was signed and witnesed by two medical staff who were not involved in his care . He had full capacity and knowledge of what he was doing . The change to the will was to remove several charities who were to recieve the residue of the estate after bequests were paid to me my brother and 2 cousions who still remain on the new will. His new will was granted probate in February . I have now recieved a Larke v Nugus letter from a firm of solicitors who say they are representing the charities that were named on the old will. The letter also mentions my contact with the solicitor who drafted the old will and the fact that my uncle was in hospital at the time when the new will was drafted . My uncles new will were his last wishes made because that was what he wanted . My uncle was still driving his car a week before he went into hospital and had full capacity up to the day he passed away about 3 weeks after he made his new will. My question to you his how should i respond to the Larke v Nugus letter. The will is close to been dispersed to the named beneficaires i have read that 21 days to respond to the letter is acceptable. Thank you if you take time to read this and reply with your thoughts.

[C Sider]

Unforunately it does come down to the judge on the day so there is always a risk. If it was proved it was due a solicitor's negligence in drafting the will there could be other recourse such as a professional negligence claim being brought against them.

It doesn't mean that executors and beneficiaries should be different people however it all comes down to the fact in the specific case.

The costs issue is never ideal which is why mediation and encouragement to settle matters outside Court are always encouraged to try and keep the costs down.

Your solicitor will advise on the risks as you progress and should keep you informed of the options available at all stages and the cost risks to you in addition to providing you with cost estimates and updates as you go along. If the don't do ask.

Hi i have read your advice on will disputes on the forum . Can i ask your advice on my situation i am executor and main beneficiarie to my late uncles will . Whilst in hospital my uncle wanted to change his will . We asked the solicitor who drafted his old will if he could come to the hospital and discuss my uncles request. The solicitor visited my uncle and had a meeting which was private between them both. The solicitor could not seem to understand my uncle who had throat cancer . The meeting resulted in my uncles wishes not been acted on . So to move things on my uncle aggreed to me drafting a new diy will with his new wishes . He signed a letter informing his solictor he no longer required his services . The new drafted will was signed and witnesed by two medical staff who were not involved in his care . He had full capacity and knowledge of what he was doing . The change to the will was to remove several charities who were to recieve the residue of the estate after bequests were paid to me my brother and 2 cousons who still remain on the new will. His new will was granted probate in February . I have now recieved a Larke v Nugus letter from a firm of solicitors who say they are representing the charities that were named on the old will. The letter also mentions my contact with the solicitor who drafted the old will and the fact that my uncle was in hospital at the time when the new will was drafted . My uncles new will were his last wishes made because that was what he wanted . My uncle was still driving his car a week before he went into hospital and had full capacity up to the day he passed away about 3 weeks after he made his new will. My question to you his how should i respond to the Larke v Nugus letter. The will is close to been dispersed to the named beneficaires i have read that 21 days to respond to the letter is acceptable. Thank you if you take time to read this and reply with your thoughts.

[C Sider]

So,your brother is neither a beneficiary or an executor of the estate - so he,or his solicitor,has no right whatsoever to see any information about the estate.

That is,they are not entitled to see the estate accounts or the will,they can of course buy a copy of the will from the public web site.

You have no obligation,under the law.to even respond to their solicitor's demands.(They are not a party to the estate)

I have very recent experience of exactly this treatment from aggressive siblings and equally aggressive firms of solicitors and barrister.

Briefly,parent died and I was sole executor and major beneficiary.The other siblings were minor beneficiaries.

Soon after death,they wrote to me saying they were going to administer the estate.This first letter arrived shortly AFTER I had got probate.

I ignored this letter.

Second letter arrived (more threatening) saying I had so many days to respond otherwise court action etc.

I ignored this second letter.

Third letter arrived saying they were now going to apply for letters of administration and that I should not also apply without their authority (Cheek!)

I then chose to reply,I simply said "Stop bothering me,there is a probated will."

All went quiet for a few months.

Then another letter from a different,bigger and much more aggressive,firm of solicitors. Saying they were questioning the validity of the will under the usual undue influence,unsound mind baloney.

Again,I ignored this letter (I was under no obligation to respond)

Then another letter arrived with a copy of a letter from my parent's GP suggesting that the deceased may have had a 'cognitive impairment but they could not say for sure' the solicitor suggested that my parent had dementia because of the GP's letter.And also with a part 36 offer to split the estate equally so that,in effect. all my problems would go away if I signed the letter.

Of course this was just extreme pressure and total lies as I knew exactly how my parent was before death and dementia was not even mentioned on the death cert.

Again, I ignored their latest threat.

Another letter arrived when they said they were applying to the county court to force me to provide a Larke/Nugus letter explaining how the will was made.

I decided to supply a sworn affidavit to the court as it was a DIY will (not the solicitor) explaining how the will was made.I did this myself.

Up to now I had not spent a single penny on any legal costs - why should I,I had done nothing wrong ?

When the solicitor received a copy of my sworn affiidavit they completely dropped their case but they went on to say that they were now seeking costs from me as I failed to respond in good time to their requests for information.

They asked me for a few thousand by return otherwise they would go to court again and these costs would more than double as they were going to employ a barrister (ooh scary!)

I ignored this latest letter and lots of other very threatening letters up to the date of the court hearing.

I just turned up at the court hearing and the judge laughed their barrister out of court - as he said to him "do you want me to throw it out or just dismiss it?"

So,in summary.

I was threatened by my siblings,2 firms of solicitors,a barrister and 2 court hearings.

I didn't spend a single penny in legal costs.

I won both court cases (Both "Application dismissed,no order as to costs")

My advice to you is this:

Don't even respond to their threatening letters - you don't have to as they have no right.They are being aggressive,you be passive.

Don't bother with any legal advice - you don't need it and why should you spend anything

Call their bluff - their letters are just threats trying to force you to respond and make them an offer.You don't have to - you are just executing the deceased's last wishes. These letters will probably continue as they try and ramp up the pressure on you - don't respond.

Only,if and when,they take you to court then you respond. Even then stay strong and hold your course and just carry out your executor duties.

And if it gets to court,don't be alarmed.The judges have seen all this stuff many times before and they know all the tricks in the book.

Remember,solicitors are only after trying to increase their fee income,console yourself with the fact that every letter that they send will be costing your brother money.

Your brother does not have a case, he is being vexatious and frivolous.

Good luck.

Hi i have read your advice on will disputes on the forum . Can i ask your advice on my situation i am executor and main beneficiarie to my late uncles will . Whilst in hospital my uncle wanted to change his will . We asked the solicitor who drafted his old will if he could come to the hospital and discuss my uncles request. The solicitor visited my uncle and had a meeting which was private between them both. The solicitor could not seem to understand my uncle who had throat cancer . The meeting resulted in my uncles wishes not been acted on . So to move things on my uncle aggreed to me drafting a new diy will with his new wishes . He signed a letter informing his solictor he no longer required his services . The new drafted will was signed and witnesed by two medical staff who were not involved in his care . He had full capacity and knowledge of what he was doing . The change to the will was to remove several charities who were to recieve the residue of the estate after bequests were paid to me my brother and 2 cousions who still remain on the new will. His new will was granted probate in February . I have now recieved a Larke v Nugus letter from a firm of solicitors who say they are representing the charities that were named on the old will. The letter also mentions my contact with the solicitor who drafted the old will and the fact that my uncle was in hospital at the time when the new will was drafted . My uncles new will were his last wishes made because that was what he wanted . My uncle was still driving his car a week before he went into hospital and had full capacity up to the day he passed away about 3 weeks after he made his new will. My question to you his how should i respond to the Larke v Nugus letter. The will is close to been dispersed to the named beneficaires i have read that 21 days to respond to the letter is acceptable. Thank you if you take time to read this and reply with your thoughts.