Validating a will

[crich2021]

Bit of a backstory - My mum and step Dad were married for 30 years. In January 2020 they had to be separated as my step Dad's dementia advanced and he could no longer care for her (her carer) or himself and they were both placed in a care home to meet their individual needs. His son had acquired LPA a few months beforehand. Due to the pandemic they were not able to be reunited, although kept in touch with phone calls and letters.

My Step Dad died in Oct 2020 - His son called my mum and explained that he would 'sort everything' including the funeral. Mum was limited in terms of what she could do. Mum then caught Covid and was hospitalised so couldn't attend the funeral. The step son told my mum that there was no will, she would get everything under intestacy, but did say that letter of wishes were found with his possessions at the care home.

A few months later Mum called the step son to ask what was going on - the son told her to sort it out herself and she called the bank to see if they had been notified. The bank must have called the step son as he called (and was furious) that she was meddling. My mum asked him to communicate by post to save arguments. This week Mum got a letter and a copy of a 'will' from the step son.

• The will states that everything should be divided between his two children (including jewellery and sentimental objects) and only 20% of his bank savings should go to my mum
• The will nominates the son as executor
• The homemade printed will was dated in July ( During lockdown), and signed by two carers who were looking after him at the time
• The full names and address are not on just the first initial and last name and signature.
• The 'will' was found in my step Dad's things by one of the carers that had signed and this was the person who handed the document over to the step son
• Both witnesses have now left employment at the care home
• The care home no nothing of a request to create or witness a will (this is against policy) and when told were horrified explaining that they very much doubt he had capacity to instruct or understand. They were not notified that it was found either.

The son has since sent my mum another letter asking her to agree that he administers the estate - explaining if she doesn't do this, no one will get anything - he even sent a self addressed envelope! There was no property to sell but the estate was over £30K so I'm not sure if they are confident in the will why they haven't already applied for probate and need my mum to give them permission.

What's the best course of action here? We seem to be getting lots of brick walls as the home won't speak to us, give us the witness details or info about mental capacity - even though my mum is next of kin!

Thank you for your advice.

[des8]

So something smells

I would suggest your mother enters a caveat (cost £20) to prevent a grant of probate.

Then see what medical evidence there is to try and ascertain if your step father would have had capacity to make a will.
Looking to declaring the will invalid, so that effectively he died intestate and his whole estate passes to your mother.

If that fails she can then still lodge a claim under the Inheritance (provision for family and dependants ) Act 1975 as I doubt any court would be happy that a widow is left such a tiny portion of an estate.

When the caveat has been entered tell the son what is proposed and the alternative courses of action proposed.
Be prepared to negotiate a settlement with him, as quite honestly contentious probate (even if diy) can be horrendously expensive and this does seem to be a small estate. It could easily be exhausted by costs.

[twohoots]

So something smells

I would suggest your mother enters a caveat (cost £20) to prevent a grant of probate.

Then see what medical evidence there is to try and ascertain if your step father would have had capacity to make a will.
Looking to declaring the will invalid, so that effectively he died intestate and his whole estate passes to your mother.

If that fails she can then still lodge a claim under the Inheritance (provision for family and dependants ) Act 1975 as I doubt any court would be happy that a widow is left such a tiny portion of an estate.

When the caveat has been entered tell the son what is proposed and the alternative courses of action proposed.
Be prepared to negotiate a settlement with him, as quite honestly contentious probate (even if diy) can be horrendously expensive and this does seem to be a small estate. It could easily be exhausted by costs.

Des, a caveat costs only £3 now. You know my feelings on this.

[crich2021]

Thank you so much for your advice. The care home confirmed that a Dols was in place at the time - we are trying to obtain a record. Do you have to follow a legal process to declare a will invalid? Who ultimately decides? Or does it have to go to court regardless?

Best wishes.

[des8]

Application to the High Court is required to have a will declared invalid.

Evidence will be needed that when the will was signed your step father lacked capacity.
People suffering from dementia can, depending on the progress of the condition, have periods of lucidity so it is not necessarily straightforward.
Evidence will be needed from the witnesses as to his mental condition when signing

[crich2021]

A quick update on progress. The witnesses have been found and interviewed by a solicitor - One said that they were both together when signing the will, the other has said that they were not together and she did not witness the signing of the will but signed the will later that day. Would this still make the will valid? Thank you.

[ostell]

Yes invalid. Witnesses have to see the will being signed. This means both have to be present when the pen hits the paper. Question to ask is who instigated the preparation of the will?

[des8]

The actual wording of the law is:
"(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; "

So both witnesses have to be together when the testator either signs the will or acknowledges his signature, but:

"(d) each witness either—

(i) attests and signs the will; or

(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),"

So I'm afraid it's not as clear cur as everyone thinks!