Permanent Caveat

[magenta]

Looking for guidance



I am an executor to a will that has a permanent caveat placed on the will due to concerns of dementia. The judge has stated that the solicitors that drafted the will should disclose their file to both parties to end the situation.


Now the caveators solicitors is stating that they are going to add to the claim further to the dementia, undue influence and claim under the inheritance act if the will stands.


The caveator asked for a larke and negus from the solicitors then queried the answers with more questions. This was over a year ago and it appears the solicitor that drafted the will for the deceased have defended it quite rigorously stating their was nothing of concern. We have asked for the caveator to provide the second set of question and answers but they have stated that they have no further comments to make. Although we now have a copy from the solicitor that drafted the will.


So my 1st question is can a caveat be added on to once it is permanent ie it is for dementia only

but now they are claiming dementia or undue influence if that does not stand inheritance act.

They have asked for the estate figures which they were provided even though the will has not gone through probate.

2nd Can I demand that they document their evidence to progress the claim.

Any help would be appreciated.

[des8]

Re: Permanent Caveat

Hi and welcome.

It seems to me that solicitors having been involved, the dispute has taken on a life of its own.
The more solicitors are involved, the less estate will be left for distribution to beneficiaries.

So a caveat was lodged, you issued a warning to whih an appearance was lodged.
It can only now be removed by consent of the court.
Has mediation been attempted?
Come to an agreement wth the caveator, and gain court's consent ....... quicker and cheaper than court.

Had the testator been diagnosed with dementia of sufficient severity to cause him lack sufficient testamentary capacity ?
If testator was suffering from dementia, it would not be unusual for a challenge to a will to include "undue influence".

Presumably the caveator feels he has been dealt with unfairly by the will.

More info might glean more comments, but you are being guided by a solicitor versed in contentious probate?

[magenta]

Re: Permanent Caveat

Hi Des8

Thank you for your reply, testator had been diagnosed with early to mild dementia.

I have a statement from his dementia doctor and he states that there is no reason why he could not have made the will. He has also stated that he witnessed no undue influence regarding the person being accused.

As mentioned previously the solicitor that drafted the will has gone to great lengths to clarify that he was capable of making such a will and clarifying that no undue influence was involved.

Thats why I was asking should I ask them to document their case? As his caveat had been answered which the Judge instructed to be done.

[Openlaw15]

Re: Permanent Caveat

Hi Des8

Thank you for your reply, testator had been diagnosed with early to mild dementia.

I have a statement from his dementia doctor and he states that there is no reason why he could not have made the will. He has also stated that he witnessed no undue influence regarding the person being accused.

As mentioned previously the solicitor that drafted the will has gone to great lengths to clarify that he was capable of making such a will and clarifying that no undue influence was involved.

Thats why I was asking should I ask them to document their case? As his caveat had been answered which the Judge instructed to be done.

It's not the doctor's view of dementia it's the court's view of mental capacity based on Wills' law, ie the capacity tests. The question is, was the person who was affected by dementia incapacitated to the extent that his Will was not valid. What evidence did the caveat lawyer have for challenging the Will either by capacity or 'undue influence.' For Will's there's a different standard than the usual undue influence, ie it's different from contract cases I believe.

[des8]

Re: Permanent Caveat

As an appearance has been lodged, you need the court's agreement to have it removed.
If you can't come to an agreement with the other side, you will need to start court proceedings against the caveator to remove it.

[magenta]

Estate Accounts

Hi All,

Looking for some advise please. I am an executor of a will that is being contested by a previous will. Which I might add is not signed, dated or witnessed and has numerious errors on. They are not mentioned in the will that I am executor off but are asking for estate accounts. My question is am I legally bound to show them the estate accounts if they are not mentioned in my will, I did forward them the paperwork that was sent to probate, but I do not feel as if I should show them anything else.

Where do I stand?

Hoping for someone can help.

Magenta

[Kati]

Re: Estate Accounts

[MENTION=85500]Peridot[/MENTION] ... one for you??

[ostell]

Re: Estate Accounts

If the will that is in your possession is the latest and full compliant with the requirements then you can tell them go whistle. If they are not mentioned then they can have no interest in the estate,

[magenta]

Re: Estate Accounts

Hi thank you for replies, they do have a premenant caveat. Do you think this would make any difference as they are asking for his bank statements as well.
They are also asking me to go and get medical records for them?

magenta

[des8]

Re: Estate Accounts

If they want medical records, it is for them to apply in writing to the record holder under the Access to Health Records Act (1990).

You don't have to provide bank statements to anyone.

Do you know why they have lodged a caveat, and if they have good grounds for contesting the will?
Are they employing a solicitor?

[magenta]

Re: Estate Accounts

Hi Des8

They have already obtain the medical records from the hospital, via their solicitors. The caveat now permanent due to dementia query? However this was in 2014 and now we have discovered that the brain scan is clear. This week they have now asked us to provide GP records. We have statements from doctors and the solicitor who draw up the original will carried out. Stating that he was clear and coherant in 2012 when will executed. They requested a Larke v nugus from the solicitor of the will which we have from the solicitor and were not happy with that. (As it did not go in their favour) at all.
They are now saying that in Pre-Action Protocol, and in an attempt to resolve this matter without the need for court intervention they will provide a expert medical report and witness statement once they received the bank statements and accounts. and that if we do not agree to mediation or ADR they are starting legal proceedings.
Magenta

[des8]

Re: Estate Accounts

I suppose they are disgruntled family members, and I note this has been ongoing for over three years.

It looks as if they are trying to bully you into agreeing a settlement with them to avoid the cost of litigation.
Their solicitor of course is being paid the whole time and won't object to some litigation!
First it was dementia, then undue influence and then they waved the Inheritance Act

Whilst costs for both sides are most often awarded out of the estate no guarantees can ever be given about what costs orders the court will make at the end of the case.
If the court decides the caveator was pursuing a lost case from e.g. the time the medical records showed dementia was not a factor. they could award costs against that party.

[magenta]

Re: Estate Accounts

Yes it has been going on for sometime. The biggest problem I have is their will that they have presented. Like I say it is not signed, not dated, not witnessed and even has the wives name is incorrect. The will writes that gave a covering letter stating it is a copy as they cannot find the original stated that the took the company over in 1996 but I went to company house and the company they state they took over was not until 2005. Well after the ladies death in 1998.
They have made serious accusations in written statements which I have letters from the bank and police statements to prove these to be untrue. This is a small part to why I feel I do not want to negotiate with this person.
Just to let you know I have funded all this out of my own pocket total cost so far is 20,000, sick joke as will stated all cost out of estate.
This leads me into another question as to why executor has to foot the bills and not come out of the estate. Now I have to go to mediation cost I dread to think.

[Peridot]

Re: Estate Accounts

Hi Magenta,
Oh dear, I agree with all previous responses so far. I don't see that they have a right to any bank statements. They have received everything under the Larke v Negus relating to the validity of the Will. Are they saying their Will is later than yours but they can't find the original?
What are they trying to get at with copies of bank statements. Are they trying to claim there was some sort of fraud or undue influence over the deceased that they hope to show with the bank statements?
My view yes be helpful, which you have been with the LvN request but if they want GP records then they should be obtaining them. They are no longer confidential after the person has died although they may need to obtain your authority for their disclosure, but why should you pay for the copies of the records? I wouldn't refuse authority if it is needed of course be seen to be helpful but I don't know what else they expect here.
It does sound like they are clutching at straws. I wouldn't get into any dialogue with the people other than through mediation and it may even be sensible to have a sought advice on the various options before attending. Yes it is expensive but you will also need advice on what they are requesting.

What are they claiming they are due. Does the unsigned 'draft' will leave them everything? It would be sensible to look at the will they claim should be correct albeit they can't actually locate an original! and see if you can see what they are angling for. Maybe then consider the cost to the estate if the matter went to Court (although the costs of a spurious claim could always be awarded against the person bringing the claim!) Would an offer make this go away or are they likely to want their 'day in Court' irrespective of how reasonable you are or what offer you possibly make?

Have they asked for anything as yet? Do they still have a solicitor acting or are they doing this themselves now? Sorry I couldn't quite work it out. If they no longer have a solicitor I would suggest they have been told they are unlikely to be successful and the law firm are no longer acting or is the request for GP records from the solicitor?

[magenta]

Re: Estate Accounts

Hi Peridot
The letter that got presented with their will they are trying to state that it was in 1998, the will I am representing is in 2012.
Their will everything was left to the otherside.
I agree about the GP records, do not know why they have asked us and they went to the hospital themselves and got records and now they state they have a Golden Rule of Thumb specialist medical report so I do not know why this week I am being asked to obtain GP records for them. They even sent medical records to us that stated he was functional at home no help needed etc but now state they have nothing in their procession. It is all very strange behaviour.
Yes all correspondence is through their solicitor, before this last letter they have instructed us to pass on everything to them on the basis of that will.
Now that they are talking about mediation but not give any explaination as to what they want only for us to made an offer to settle. BUT is this a good thing to do.
The supporting statements we have been sent are a pack of lies and malacious falsehoods and they are even changing the statements that they are making. First stating one thing and then stating something completely different on the same subject. They have mentioned about undue influence our solicitor wrote and asked them to clarify they totally ignored two letters requesting evidence of their claims. They even mention this in correspondence to the solicitors that draw up our will. They gave a full and comprehensive report back stating there was no undue influence. This had been also stated by the hospital to them.
Once again they are refusing to pass on the evidence/claims until we agree to mediate. Surely this cannot be correct?
How on earth can they make these statement without evidence being provided to us.
We feel that if we go to mediation everything the other side had done he gets away with. We feel he should be accountable to someone.
Magenta