Suspicious that a Will cannot be found. What next?

[Carlson999]

Wow, that's disappointing. I just applied for a Caveat online then read your message. Oh well. I shall certainly look into raising a dispute but will get an estimate of fees first. It does seem like cards are fluttering out of my hands. I didn't get a chance - spouse kept the death from me, and solicitor only informed me 3 months after the probate was granted (there is no other family left to receive the news except myself and the spouse). I find it hard to believe this is acceptable really.

[PallasAthena]

It will be interesting to know the advice you get from a legal specialist about the chances of you being able to successfully challenge the intestacy.

How long before your mother's s death did they get married?

A Deed of Variation will not help you in these circumstances unless you are first able to get the intestacy 'probate' cancelled by a court.

In theory a DoV could be used to change who gets what under the intestacy Letters of Administration but only if your mother's husband agreed to the change.

There doesn't seem to be any reason why he would agree to such a change although you have nothing to lose by asking him if he would agree to amend the inheritance in line with the wishes your mother expressed to you.

[Carlson999]

They married two years before her death. I wonder how advanced her dementia was then. I’ll try and get her medical records.

[Tofros]

Some things to consider.

you could ask the solicitor who was asked to do the new will for details about the circumstances of the instruction and what wishes she expressed, and the process, using what’s known as a Larke v Nugus request. You can include a request for a copy of the complete will file and any communications related to the preparation of the will. You did not say what the outcome of the mental capacity assessment was. If it was satisfactory, why did they not proceed to making a new will urgently?

if your mother lacked capacity then the solicitor should probably have given advice about making a statutory will via the Court of protection.the solicitor may have left themselves open to liability if they did not advise doing that as a matter of urgency given her age and condition.

it is possible to make a will stated to be in contemplation of marriage to a particular person and which expressly says it will not be revoked by marriage to that person. You should double check what the old will said because if it was a long-standing intention to marry one day and she was clued up as you say she may have made the old will in those terms in which case it will still be valid. You could also make a Larke v Nugus request of the solicitor who prepared the old will. If your mum was in a relationship of long-standing at that time the solicitor ought to have asked whether she would want the will to remain valid if she married her partner and explain why if they didn’t ask it, and disclose her answer if they did ask it.

[Carlson999]

Thanks Tofros, some good pointers for me to begin investigating the Solicitors, thank you. I'll have to somehow find out which Solicitor she went to previously.

To answer your questions, after the previous Solicitor refused to take on forming her Will and advising a mental capacity assessment I assume her and her spouse didn't follow it up because she passed away 3 months later. They were together for 30 years but after divorcing my father she had no intention of re-marrying. Unfortunately the current appointed Solicitor said that there was no "in contemplation of marriage" on the existing 2018 Will. I'd love to see a copy of that Will but not sure that's possible :-(

[Carlson999]

It will be interesting to know the advice you get from a legal specialist about the chances of you being able to successfully challenge the intestacy.

How long before your mother's s death did they get married?

A Deed of Variation will not help you in these circumstances unless you are first able to get the intestacy 'probate' cancelled by a court.

In theory a DoV could be used to change who gets what under the intestacy Letters of Administration but only if your mother's husband agreed to the change.

There doesn't seem to be any reason why he would agree to such a change although you have nothing to lose by asking him if he would agree to amend the inheritance in line with the wishes your mother expressed to you.

Thanks PallasAthena, it seems very unlikely that I can challenge the intestacy so I think my only opening would be to collate evidence of her mental incapacity to agree to a marriage. They had been co-habiting for 30 years and my mother had no intention of re-marrying, so I'm astonished she did it at the age of 78 as dementia was likely taking hold. I know she wanted to provide for her partner to remain living in the house until his death, which she could have done through a Will.

Plan B is to try to get him to agree to a DoV and in the meantime keep the Caveats going.

[Carlson999]

One other question that I can't find an answer for: If this surviving spouse dies after the probate has been granted but whilst I dispute it/hold it by caveat, what happens to his portion?

[atticus]

It goes into his estate.

[Tofros]

His portion would accrue to his estate and be distributed according to his will or the rules of intestacy whichever is relevant. However, as the sole other beneficiary under your mothers intestacy you would be the only person entitled to become the administrator to execute the remainder of your mums estate.

Have you got a copy of the actual full letters of administration to confirm who is empowered to administer your mums estate and in what capacity the lawyers are acting? Does the grant name them as attorney, or is mums husband named and lawyers are merely advising?

Do you know if her husband has mental capacity? He is not entitled to continue as administrator if not. If he has a registered poa in place, the person holding the poa on their behalf cannot I think
act in their stead as administrator unless you have first been “cleared off”.

[PallasAthena]

Just to share two thoughts with you carlson999.

It's looks from your timeline that there was about 1 year 9 months between the marriage and the solicitor declining to prepare a new will on mental capacity grounds. Dementia, and its rate of development, varies greatly between people of course but I know from personal experience with my own mother that mental capacity can deteriorated significantly in a period of nearly two years. So it may be difficult to draw conclusions about her mental capacity at marriage from her later condition.

An entirely speculative thought but could the reason for marriage after 30 years living together been connected in part to your mother's concerns about how Inheritance Tax might affect her Estate? IHT is common reason I've often heard for marriage very late in life.

[Carlson999]

His portion would accrue to his estate and be distributed according to his will or the rules of intestacy whichever is relevant. However, as the sole other beneficiary under your mothers intestacy you would be the only person entitled to become the administrator to execute the remainder of your mums estate.

Have you got a copy of the actual full letters of administration to confirm who is empowered to administer your mums estate and in what capacity the lawyers are acting? Does the grant name them as attorney, or is mums husband named and lawyers are merely advising?

Do you know if her husband has mental capacity? He is not entitled to continue as administrator if not. If he has a registered poa in place, the person holding the poa on their behalf cannot I think
act in their stead as administrator unless you have first been “cleared off”.

I do have an initial letter from the Solicitor for the "estate administration" and I'd expect them to be the attornies and not the husband. However, I can't be 100% because I don't have the full letters of administration that lay out who's who. I think he does have mental capacity, but if he doesn't how could I get to know?

[Carlson999]

Just to share two thoughts with you carlson999.

It's looks from your timeline that there was about 1 year 9 months between the marriage and the solicitor declining to prepare a new will on mental capacity grounds. Dementia, and its rate of development, varies greatly between people of course but I know from personal experience with my own mother that mental capacity can deteriorated significantly in a period of nearly two years. So it may be difficult to draw conclusions about her mental capacity at marriage from her later condition.

An entirely speculative thought but could the reason for marriage after 30 years living together been connected in part to your mother's concerns about how Inheritance Tax might affect her Estate? IHT is common reason I've often heard for marriage very late in life.

Thanks for your input regarding mental capacity and deterioration. My Dad signed over POA to his wife about 3 years ago as dementia set in and he couldn't log into his bank accounts or understand phone calls. He's now at the advanced stage of dementia and barely recognises anyone, but as you said it's a different timescale for different people. If I saw doctors notes around the day of marriage it would give me a clearer indication. Of course, if there were no medical visits around that date that avenue would be closed and I'd have to let the Intestacy stand as it is and just try to negotiate by pushing for part-ownership of the house.

I really don't know much at all about IHT because I've never had a reason to begin looking into it..until now. All I know is under intestacy rules as they are, IHT would not be applicable because the split estate value is below the individual threshold. If they hadn't have married, how would IHT be calculated? I hadn't thought of the marriage as an attempt to avoid IHT before, but you well may be right.

[PallasAthena]

If you do a search for "what are the benefits of being married for IHT" you will see why I mentioned it. It's primarily the 'spousal exemption' in UK IHT law and the 'Transferrable Residence Nil Rate Band'.

Assets left to the person you are married to or in a formal civil partnership with are exempt from IHT. Assets left to a partner you are not married/CP'd to are not exempt however long you have lived together.

Depending on the size of people's estates this can be an incentive to marry long term partners. I have friends and family who have done exactly that so it made me wonder if IHT planning could have been behind your mother's decision to marry, a decision which was surprising to you,

[Carlson999]

It could be twofold: IHT tax planning (whereby if she left her estate split to myself and her grandchildren the IHT would amount to a massive 100K), but I think mainly it was to ensure her partner could remain in the property and not risk me challenging the Will and kicking him out. However, I'm still very sure she wouldn't have wanted to leave such a huge proportion of her estate to him and thus his children....but it was too late. No contemplation of marriage on her old Will, and not well enough to make a new Will. As this thread goes on with all of your input it's becoming more and more clear to me what happened and what I can/can't do when I meet the Solicitor in 2 weeks time.

[Tofros]

I do have an initial letter from the Solicitor for the "estate administration" and I'd expect them to be the attornies and not the husband. However, I can't be 100% because I don't have the full letters of administration that lay out who's who. I think he does have mental capacity, but if he doesn't how could I get to know?

you should be able to access the full letters of administration from the probate registry for a small fee.