Larke v Nugus request turned down

[cedars73]

My mother-in-law made a will in 2015 in which I was joint executor and beneficiary with her son. She told me she'd left me half of her estate, but not that I was joint executor. She made a new will in 2020 when she was in the advanced stages of dementia, naming her son as sole executor and main beneficiary, and sadly died in 2021. The son did not communicate with me until Probate was granted so I didn't find out about the new will until it was too late. The 2015 will-makers say they need her son's consent to reply to the Larke v Negus request, which he is refusing to give. As I was joint executor on her first will, can I demand a reply despite his refusal to agree to it? Thank you.

[dslippy]

A Larke v Nugus letter is primarily to help prepare a challenge before the probate is granted. It is not clear to me that it remains appropriate once the court has decided to issue the grant.
The solicitors are right to ask the executor for consent, but have a duty to consider a response themselves if that is refused. Do they see a proper reason for the making of the request?
It was not for the son to communicate with you before applying for the grant. It was for you to either apply for probate for the original will or to issue a caution.
Being an executor under the first will gives you no particular position or status.

Re Moss, Larke v Nugus [2000] WTLR 1033

[atticus]

And a subsequent will revokes earlier wills.

[cedars73]

Thanks for your input. Unfortunately, when my brother-in-law didn't mention anything about the will, I assumed he was the sole executor and I didn't want to question him about it a) as he's rather secretive and I didn't expect him to divulge anything until probate was granted and the estate was ready to be divided according to my mother-in-law's wishes and b) because I had no idea he'd have done anything untoward (like get her to make a new will leaving everything to him when she clearly lacked capacity!) and just expected to hear from him when when probate was granted and we had to decide what to do with her house. When my mother-in-law first told me she'd left her late son's (my late partner's) share of her estate to me, I said I didn't think her surviving son would be happy with that. She assured me he'd be fine, he was only ever going to get half and he had no problem with the other half going to me instead of to his late brother. But the original will has "disappeared" from her house, and only the new will now exists. My solicitor is trying to get proof that there was a previous will which contained my mother-in-law's true wishes (before she became so ill with dementia that she would have signed anything that was put in front of her) but as sole executor by brother-in-law is refusing consent for the drafters of the original will to release any details of it. There's no point contesting the validity of the new will if we can't prove the existence of a previous one as that would mean she died intestate and the result would be the same.

[dslippy]

Destrying an earlier will on the making of a new one was good practice since it avoided confusion.

You are going to have to show that she clearly lacked capacity. Yes you may think so, and indeed be correct, but if a solicitor drew her will and attended its execution he should have done so under a conclusion hat she was fit to make the will. Your conclusion may need legs of its own.

[cedars73]

Destrying an earlier will on the making of a new one was good practice since it avoided confusion.

You are going to have to show that she clearly lacked capacity. Yes you may think so, and indeed be correct, but if a solicitor drew her will and attended its execution he should have done so under a conclusion hat she was fit to make the will. Your conclusion may need legs of its own.

Yes, very true. Except a solicitor did not draw her will; her son claims not to know anything about it and nobody seems to know who did it (it was typed and handwritten on two scruffy pieces of paper with staples and punch hole marks in them) and the two elderly witnesses have refused to - or been instructed not to - give any details about the circumstances surrounding the execution of the will. Apparently a solicitor DID come to the house previously, at the son's request, to draw a new will but left without doing so as he said the deceased lacked capacity.

[dslippy]

Your real objection is as to the grant of probate. You must either get on with a challenge (I do not say it is possible) or give up. The longer you leave it the court will think more that things have been done.
How do you know hat that was what the solicitor did?
Your problem is that even if the grant is revoked, without direct and convincing evidence of the first will, what will happen to the estate (making assumptions galore) will be what would happen under the will so far as you are concerned.

[cedars73]

Your real objection is as to the grant of probate. You must either get on with a challenge (I do not say it is possible) or give up. The longer you leave it the court will think more that things have been done.
How do you know hat that was what the solicitor did?
Your problem is that even if the grant is revoked, without direct and convincing evidence of the first will, what will happen to the estate (making assumptions galore) will be what would happen under the will so far as you are concerned.

My solicitor has challenged the will. I have a draft copy of the original will and the solicitors who drew it say it was executed in their office but that the deceased took the signed copy home with her. My solicitor has asked them for their file on the will to prove it was executed but they say they can't release that information without my brother-in-law's consent, which he is refusing to give. As I said earlier, "There's no point contesting the validity of the new will if we can't prove the existence of a previous one as that would mean she died intestate and the result would be the same", so my question is, simply, " As I was joint executor on her first will, can I demand a reply (to the Larke v Nugus request) despite his refusal to agree to it? "