Contesting a will - second opinion

[MishH]

Apologies for long post, but I thought all the background was necessary.

Background

The testator was my uncle. He died recently at the age of 94.

He had no children with his deceased wife and so his only next of kin were his nieces and nephews. He also had a foster child.




Drawing up of original will

• In 2004, he made a promise to my father to include myself and my sister in his will.
• Prior to his wife’s death in 2015, she asked him to include us so that we would have her share of the estate. He promised her he would.
• Therefore changing the will and omitting us betrays his promise to his wife whom he adored.

My uncle finally had a will drawn up in 2018 aged 88.

In that will, cousin ‘B’ was given my uncle’s other property. The remainder of the estate including my uncle’s home was to be divided between myself, my sister, and the foster child.




Timeline thereafter

• Uncle has an accident and fractures his back. His health starts to decline.
• During the course of 2020-2022 his hearing deteriorates rapidly and he purchases high quality hearing aids, but they only worked for ten minutes at a time. Hearing was intermittent.
• He loses sight in one eye and is partially blind in the other.
• He stopped taking at least one medication namely his water tablets which would have led to high blood pressure and the vascular dementia he was later diagnosed with.
• He starts to exhibit memory loss and confusion. In 2021 he contacts us to help him deal with his bank accounts, insurance, repairs etc.. because ‘we were the only family he trusts.’
• He tells us cousin ‘B’ fraudulently put her name on the deeds to his other property. He also repeats this separately to his friend. (Third party testimony available)
• He tells us to get hold of a copy of the deeds to check – as cousin ‘B’ had the only copy – and the deeds proved him correct.
• While we applied for the deeds, he became extremely agitated asking us repeatedly if she would find out. He was very anxious for her not to know he was acquiring the deeds and was afraid of her. He was preparing to remove her from the will.
• He said he did not trust her and that she stole his wife’s ring. (Foster child’s testimony)
• Cousin ‘B’ was spotted by a neighbour removing uncle’s personal possessions from his house while uncle was in hospital, according to uncle himself. (Third party testimony available)
• In November 2022, according to uncle, cousin ‘B’ spent a number of days with him. (Third party testimony available)
• By this time he was very vulnerable physically and mentally. He had accused the NHS of murdering his wife. He had accused several friends, cleaners, and family members of stealing from him.
• By the end of November the will had been changed to make cousin ‘B’ sole beneficiary. She also set-up power of attorney over his affairs.
• Cousin ‘B’ told uncle not to tell anyone.
• However uncle told foster child. Foster child is willing to give up his claim on the estate to appear as independent witness. (Foster child’s testimony)
• Uncle also told his close friend that the will writer had been there and cousin ‘B’ had changed the will. Not uncle! (Third party testimony available)
• In June/July 2023 uncle falls ill with pneumonia. There is audio recording of him agitated in hospital saying he wanted to die at home.
• In hospital in June/July 2023 he is diagnosed with vascular dementia.
• He had repeatedly told foster child and ourselves that he when it came to his end of life care he wanted to die at home and saved enough money for private care.
• I visit him in hospital on 11^th July 2023. I video him and ask him about the power of attorney.
• In the video he responds with: cousin ‘B’ has ‘always been a scrounger.’
• I then video him talking about the new will and ask him if he is happy with it.
• He never says he is happy!
• He tells me he would never leave myself, my sister or his foster child out of the will.
• He then tells me I will be entitled to everything.
• There is therefore a serious disconnect between the will made in November 2022 and what he wanted!
• A couple of weeks later he is discharged from hospital.
• I try to visit him at his home, but all the locks have been changed and my keys don’t work!
• Within days cousin ‘B’ has made arrangements to remove uncle to a care home permanently far from his home, paying no attention to his wishes of being cared for at home.
• A friend is with uncle when he protests vehemently about being taken to care home. cousin ‘B’ ignores his wishes. (Third party testimony available)
• Foster child, friends of my uncle, myself and my sister try to find out from cousin ‘B’ where she took uncle. She refuses to tell us which care home he is in. Very few people know where he is.
• Another friend of uncle gets a call from social services trying to find out where uncle is. Friend tells social services that he needs to ask ‘cousin B’. Shortly after friend receives a very abusive phone call from ‘cousin B’ telling him he should not have spoken to social services. (Two third party testimonies available)
• We contact the Office of Public Guardian and social services, but both are useless in trying to protect his welfare.
• The OPG declare uncle has mental capacity.
• We finally track uncle down to a care home in December 2023 but they refuse to let us see him on an unnamed person’s instructions.
• I never get to see him again before his death in February 2024.

We hire a solicitor to enter a caveat on the estate and put in Larke v Nugus request:

• The will writer did not know uncle before the first appointment.
• The will writer has no listed qualifications on Linkedin, but is a member of the Society of Will Writers.
• The will writer did not get a medical assessment and used his own judgement instead.
• The will writer explained the will verbally to uncle, but made no comment on his deafness and was unaware of any medical conditions.
• The will writer is executor and takes a percentage of the estate which I believe is some kind of trust.
• The will writer said uncle gave instructions regarding the will and that cousin ‘B’ was in the house but not in the same room.
• Given the type of will, there is no way my uncle would have thought of that on his own. He had got to the point where he couldn’t understand his bank statements.
• The will writer noted the reasons my uncle gave for leaving myself, my sister and his foster child out of the will. The things our uncle said we had done are complete fabrications.
• Friend of my uncle said she was told by uncle cousin ‘B’ had given him reasons to leave people out of the will. (Third party testimony available)

Our solicitor has been very dismissive of our claim, right from the first 30 minute meeting. She told me my videos are worthless and my cousin would claim that as he had been diagnosed with dementia, he was confused. But clearly he was okay again by the time the OPG assessed him late in 2023.


The videos show him talking about other subjects with perfect recall. My solicitor has never asked to see them.

She has said the only option for us is to acquire his medical records. While these records would confirm the hearing and eyesight loss, I am doubtful they would show confusion or memory loss because he rarely went to the doctors and was not diagnosed with dementia until 2023. Though he clearly had it beforehand.


The solicitor thinks we have no case, so I am seeking a second opinion based on the above. I would be grateful for such opinions.

[atticus]

You are clearly seeking to challenge the Will on grounds that your uncle lacked testamentary capacity. That is going to require strong and clear medical evidence if it is to have any chance of succeeding.

Are you aware of the risk of having to pay substantial legal costs if you go ahead and lose?

[Pezza54]

How was the will signed?

[MishH]

You are clearly seeking to challenge the Will on grounds that your uncle lacked testamentary capacity. That is going to require strong and clear medical evidence if it is to have any chance of succeeding.

Are you aware of the risk of having to pay substantial legal costs if you go ahead and lose?

Thank you for your quick response. We actually believe our uncle was coerced, but are aware of the very high evidence threshold required for succeeding.

We are also aware of the costs involved - unfortunately we upgraded our contents insurance which included disputes far too late for us to use it. At the moment we are receiving funding from uncle's foster child who is emotionally invested in a positive outcome. Hence, the reason he is willing to give up his claim on the estate to be able to testify neutrally.

[MishH]

How was the will signed?

Thank you for your response.

The will was signed by my uncle in front of two witnesses selected by the will writer.

The signature is quite different from uncle's usual signature, but I guess that may have been because his eyesight was failing.

[Pezza54]

Have you managed to confirm that both witnesses were present when the will was signed?

[MishH]

Have you managed to confirm that both witnesses were present when the will was signed?

No we haven't and my solicitor has not even suggested this - one of the reasons I am not happy with her performance so far. I will put it to her and see what she says.

Thank you.

[Pezza54]

Two of the requirements of the Wills Act 1937 for a will to be valid is that the will is signed or acknowledged by the testator in the presence of two or more witnesses present at the same time and
each witness signs or attests the will or acknowledges his or her signature in the presence of the testator

[atticus]

The wording to the effect that the testator signed in the presence of the witnesses and they in his will be treated as strong evidence of correct execution and witnessing. This presumption can be rebutted, but this will require clear evidence.

[ButWhatIf?]

Think COSTS before ACTION...

Did you engage this solicitor after the first 30 minutes meeting of negativity??? If your current solicitor is not enthusiastic about your case then you should move on and part company...

How are you paying the legal fees? By the hour? Have you assessed the benefits and gains from a win to see if it's worth continuing and funding of a different type might be worth it i.e. CFA/No win no fee/Deferred Payments?

Have you tried obtaining a barrister on Direct Access (if you're willing to pay by the hour). However, the very first thing you need from a solicitor is an assessment of the case and the prospect of success (being 51% or more).

The assessment in your case needs to come off the back of review of the:-

- Will writer's Will file (to include everything including those conversations and where the contacts and communications came in from)
- Your uncle's medical records (which will include GP and hospital)
- Your uncles adult social care file (not normally included but it seems that there may be some good information on there that may support your case)

Later on you'll probably need to pay for
- Letter of Claim if this has not already been done
- Counsel's opinion
- Medical report

Just a point on your comment that the Will writer noted things... How did you get that information? From the full Will file or LvN Q&As? or other?

- If you have not done a substantive LvNs request, then you should think about doing this when asking for the Will file...

But I say this assuming your not so helpful solicitor has truly been not be not so helpful!!!

[MishH]

The wording to the effect that the testator signed in the presence of the witnesses and they in his will be treated as strong evidence of correct execution and witnessing. This presumption can be rebutted, but this will require clear evidence.

Thank you I will follow-up the witnesses with the solicitor.

[MishH]

Think COSTS before ACTION...

Did you engage this solicitor after the first 30 minutes meeting of negativity??? If your current solicitor is not enthusiastic about your case then you should move on and part company...

How are you paying the legal fees? By the hour? Have you assessed the benefits and gains from a win to see if it's worth continuing and funding of a different type might be worth it i.e. CFA/No win no fee/Deferred Payments?

Have you tried obtaining a barrister on Direct Access (if you're willing to pay by the hour). However, the very first thing you need from a solicitor is an assessment of the case and the prospect of success (being 51% or more).

The assessment in your case needs to come off the back of review of the:-

- Will writer's Will file (to include everything including those conversations and where the contacts and communications came in from)
- Your uncle's medical records (which will include GP and hospital)
- Your uncles adult social care file (not normally included but it seems that there may be some good information on there that may support your case)

Later on you'll probably need to pay for
- Letter of Claim if this has not already been done
- Counsel's opinion
- Medical report

Just a point on your comment that the Will writer noted things... How did you get that information? From the full Will file or LvN Q&As? or other?

- If you have not done a substantive LvNs request, then you should think about doing this when asking for the Will file...

But I say this assuming your not so helpful solicitor has truly been not be not so helpful!!!

Many thanks for your response.

Yes we still went ahead with this solicitor despite her negativity. This was partly ignorance on our part in not knowing where we stood, partly because we thought she was being pragmatic in trying to manage our expectations, partly because we thought there was a bit of devil's advocate at play.

We are paying legal fees by the hour and have not looked at other options yet. Nor have we looked into obtaining a barrister thinking that we need the solicitor's assistance first.

All that I explained in my first post regarding the Will writer is based solely on the LvN.

In answer to question six which was:
'If instructions were taken at a meeting, please provide copies of your contemporaneous notes of the meeting, including an indication of where the meeting took place and who else was present at the meeting.

He attached a document with the following comment: 'please note - these are the instruction taking notes, there is no file per se'

The instruction notes he is referring to only provide:
:: Date, time, and place of meeting
:: The extent of my uncle's assets and property
:: Name of beneficiary
:: Yes and No answers to questions such as 'Is Testator able to read and sign will unaided?' 'Was anyone else present when instructions were
taken?' 'Is Testator able to read and sign will unaided?'
:: Reasons for removing beneficiaries


My solicitor said she doesn't think there is anything else to ask the Will writer and thinks these basic answers are enough. Of course we are relying on her expertise that this is indeed the case.

The only thing she has suggested is to try for the medical records. She made no mention of his adult social care file.

[MishH]

Many thanks for your response.

Yes we still went ahead with this solicitor despite her negativity. This was partly ignorance on our part in not knowing where we stood, partly because we thought she was being pragmatic in trying to manage our expectations, partly because we thought there was a bit of devil's advocate at play.

We are paying legal fees by the hour and have not looked at other options yet. Nor have we looked into obtaining a barrister thinking that we need the solicitor's assistance first.

All that I explained in my first post regarding the Will writer is based solely on the LvN.

In answer to question six which was:
'If instructions were taken at a meeting, please provide copies of your contemporaneous notes of the meeting, including an indication of where the meeting took place and who else was present at the meeting.

He attached a document with the following comment: 'please note - these are the instruction taking notes, there is no file per se'

The instruction notes he is referring to only provide:
:: Date, time, and place of meeting
:: The extent of my uncle's assets and property
:: Name of beneficiary
:: Yes and No answers to questions such as 'Is Testator able to read and sign will unaided?' 'Was anyone else present when instructions were
taken?' 'Is Testator able to read and sign will unaided?'
:: Reasons for removing beneficiaries


My solicitor said she doesn't think there is anything else to ask the Will writer and thinks these basic answers are enough. Of course we are relying on her expertise that this is indeed the case.

The only thing she has suggested is to try for the medical records. She made no mention of his adult social care file.

I also meant to say that as the Will writer made no detailed notes about uncle's health and memory, he seems to be relying on his own memory when replying to the LvN questions.

[JustAThought]

Interesting... Only 6 questions to LvN and the Will writer seems to be struggling from what you said!
Other questions could have been Were other person's present and did they say anything? We're other person's asked to leave? How long did the meeting last? Did the testator agree and sign a draft? Did the testator mention previous Wills, did you ask and do you have a copy?

I'm a lay person and wrote 62 questions for my family member. The Executors have put all estate work on hold now...

If you have a caveat on probate, the chances are the Executors would have been asked questons from the probate office.

The social care records were suggestions from me. Community care data is important and you can only ask. Doesn't mean you'll get them! By the way an elderly person if they've been in hospital may have the involvement of a social worker there and separate one from council especially if the enablement team has been involved.

You could ask the GP for the medical records. Access to medixal records - deceased persons - Won't cost you... your grounds would be that you are a person that may gave a claim arising out of a person's death. You can say to the GP practice that you do not want to engage a lawyer unnecessarily when you have that right but if you do have to, then you may hold the GP practice liable for any costs you may incur in their refusal to you... that all comes in your reminder letter to GP not first letter.

By the way the OPG cannot decide on mental capacity... all they do is take the LPAs at face value and that they've been completed and signed in the right places.

Does any solicitor these days ask Executors to prove the Will off first bat? And direct access barristers can be so much cheaper per hour than solicitors!!!

[MishH]

Interesting... Only 6 questions to LvN and the Will writer seems to be struggling from what you said!
Other questions could have been Were other person's present and did they say anything? We're other person's asked to leave? How long did the meeting last? Did the testator agree and sign a draft? Did the testator mention previous Wills, did you ask and do you have a copy?

I'm a lay person and wrote 62 questions for my family member. The Executors have put all estate work on hold now...

If you have a caveat on probate, the chances are the Executors would have been asked questons from the probate office.

The social care records were suggestions from me. Community care data is important and you can only ask. Doesn't mean you'll get them! By the way an elderly person if they've been in hospital may have the involvement of a social worker there and separate one from council especially if the enablement team has been involved.

You could ask the GP for the medical records. Access to medixal records - deceased persons - Won't cost you... your grounds would be that you are a person that may gave a claim arising out of a person's death. You can say to the GP practice that you do not want to engage a lawyer unnecessarily when you have that right but if you do have to, then you may hold the GP practice liable for any costs you may incur in their refusal to you... that all comes in your reminder letter to GP not first letter.

By the way the OPG cannot decide on mental capacity... all they do is take the LPAs at face value and that they've been completed and signed in the right places.

Does any solicitor these days ask Executors to prove the Will off first bat? And direct access barristers can be so much cheaper per hour than solicitors!!!

Thanks for this. There was a full LvN with more questions - I just didn't provide it all here.
We know 'cousin b' was in the house for the execution of the will, but not in the same room according to will writer.

The will writer made a note of previous will and the reasons my uncle gave for leaving us out (which were all lies).

However there was no will file and his notes at the time were only 'Yes' and 'No' answers to questions regarding capacity. He did not indicate how he tested capacity and had no knowledge of my uncle's profound deafness nor that he was partially sighted.

Question 9. in LvN was 'Did testator show any confusion or memory loss?' To which the will writer wrote No. Yet he made no notes regarding this at the time and is therefore relying on memory to answer the question! My solicitor has not queried this.

The OPG did have an investigation regarding my uncle's mental capacity at our request (we have the paper work) and decided he had mental capacity.

We will definitely be checking with the witnesses and trying for the adult social care records.