Unexpected Caveat

[redsmiffy]

I am sole executor and beneficiary of my mothers will. A half sibling not in contact with my mother for 26 years has placed a caveat on my probrate application. Could she be entitled to anything? I know it will be all about money!

[efpom]

Did your mother have a will?
If the answer to that is "yes" - does the will mention the half sibling?

[redsmiffy]

Yes, my mum had a will, done by solicitors and states she makes no provision for half siblings, also stated n a separate statement. The will was done in May this year. Any help greatly appreciated. Thank you

[des8]

As yet you do not know why a caveat has been lodged?

There are only a few grounds on which a will can be disputed:
-testamentary capacity;
-lack of valid execution;
-lack of knowledge and approval;
-undue influence;
-fraudulent wills and forged wills; and
-rectification and construction claims.

As the will was drawn up by a solicitor I doubt any of the above apply

It is possible she will lodge a claim under the Inheritance (provision for family and dependants) Act 1975.

This won't mean that she will follow through with the claim, or that she will be successful if she does.
It could well be a ploy to commence negotiating a settlement with you.
Contentious litigation is extremely costly and she may think that you will come to an agreement to avoid diminishing the estate through high legal costs.

[redsmiffy]

That’s really useful, thank you. Just one other thing, if she drops her caveat could one of the other half siblings then place one? There are 5 others you see! All named in the will also as receiving no provision.

[des8]

People should only lodge a caveat if they have doubts about the validity of the Will and need to make further enquiries and obtain evidence/information or if they have concerns that the person who would take the Grant will not administer the Estate properly.

Unfortunately people can and do lodge caveats just to delay matters and put pressure on the executors, and it is quite possible if these other siblings are feeling aggrieved that they will also lodge caveats.

Get everything in position so that when this caveat is lifted you can apply for probate.

[redsmiffy]

I can see this being a long drawn out process, they are quite malicious. Will I have to pay a lot out in legal fees? I believe there is no legal aid available for this kind of thing.

Your help has been invaluable, thank you.

[des8]

Legal Aid is not available, however some solicitors will come to a Conditional Fee Arrangement (no win no fee)
Generally the losing party in litigation has to pay the winners costs, but in probate matters the courts will often order costs to be paid from the estate if there was a reasonable case for entering into litigation.
However it doesn't always work like that, and the person challenging a will can get caught by costs.
In a recent case such a person had to pay £70,000 as part of the executors costs. (If you want to read the judgement: https://www.bailii.org/cgi-bin/forma...+david+breslin)

As a matter of interest is probate necessary? If there is no house, nor stocks and shares might you deal with the estate without probate?

[redsmiffy]

Hi there

There is a house involved which unfortunately I need to sell as soon as possible to pay off equity release my mother took out 2 years ago, so probate is necessary. I have instructed a specialist solicitor to write to them to find out their position and then follow up with a warning. Trouble is that is when my money will run out. So if they are serious, I will need other options. My Auntie who is a Justice of the Peace in Australia has offered to give a statement to confirm my mothers wishes that I be the sole benefactor following conversations they had. Not sure if that helps. It doesn't seem fair that its costing me thousands of pounds and they only forked out £20 to stop probate online!

[des8]

Generally the executor has 12 months in which to pay off the equity release plan.
Normally this is done by selling the* property, but can be paid perhaps by raising a mortgage on it.

Nothing much to be done until the warning has been issued and see whether or not an appearance is made.*

[Hagalout]

Hi Redsmiffy, I hope you have more luck than I have had, I am the Executor and sole Beneficiary to my mothers estate, I have had a rather vexatious caveator who has entered 3 caveats in different family names yet all at the same address, appearances were entered against two of them, in which he lied saying his mother was the daughter of my mother making him the grandson which is a blatant lie. After 2 years he now wants to consent to remove it leaving me £9500 out of pocket, and I am told I am not entitled to pre-action costs. So just be wary. I have two threads on here on the subject.*

[redsmiffy]

Hi guys

So this is where I'm at currently. Awaiting a response from the caveator to my solicitor's request for a full letter of claim, She has acknowledged my solicitors letter but needs more time to seek legal advice given the Xmas period. In your opinion is it best just to make a settlement offer and avert further legal costs? I'm conscious that the clock is ticking in respect of paying back the equity loan and it seems my Mum's wishes with the will can be overturned in court anyway even though the sibling has had no contact for 26 years. Or should I stand my ground and fight on?

[des8]

Take your solicitor's advice, as on the forum we just cannot have enough information to advise what your next course of action should be.

It is possible to regain your costs if the caveator has been unreasonable**(Elliot v Simmonds and another [2016] EWHC 732 (Ch))

[redsmiffy]

Hi guys
So now the other side has sent a Larke v Negus request to the solicitors who drafted Mum's will, as they apparently have concerns about her mental capacity, undue influence and ability to understand. The drafting solicitors visited Mum in person and she was baking cakes, so nothing wrong upstairs! They sent her a draft in the post for her to check and returned for her to sign the original in person. I was not party to any of this and found out weeks later about her will when she told me. Is this standard practice on their side? My solicitor has told me to sit tight and let them investigate. Any advice welcome.

Thanks very much

[des8]

Sounds like a fishing expedition to me and I would agree with your solicitor.
It's galling, but there is little that can be done