Warning appearance

[Cavewife]

I'm hoping some one can help. I am in the process of attempting to get a grant of probate on my fathers estate. One of my siblings has entered a caveat and we have entered a warning. The 8 days is up tomorrow, I spoke to the probate office today and was informed that an appearance had been submitted today but was rejected as it wasn't written appropriately. What I want to know is how will they inform the caveator that her appearance was rejected (online or in post?) and will she have time to file another appearance?
We have a solicitor but everytime we ask a question the time gets added to our already large bill! Thanks

[Kati]

Re: Warning appearance

tagging [MENTION=39710]des8[/MENTION] [MENTION=85500]Peridot[/MENTION] xx

[des8]

Re: Warning appearance

Deleted

[des8]

Re: Warning appearance

Hopefully @Peridot will be able to advise as she is much more knowledgeable.

It is my understanding that the timetable for entering an appearance is quite strict, so if it has been entered incorrectly and needs replacing it needs to be done within the eight days ie no extension of time would be permitted.
Who knows how the court will advisethe caveator that the appearance has been rejected, if they even bother. Perhaps man with message in cleft stick


Do you know the basis of the appearance?

[Cavewife]

Re: Warning appearance

Thanks for responding
The caveator is unhappy she has been left a smaller portion of the estate so is suggesting undue influence.

[des8]

Re: Warning appearance

Well your sister has a mountain to climb as the onus of proving undue influence is upon the claimant.
She has to prove your father was influenced to the extent his free will was completely oppressed.
Not just that someone was in a position to exert influence but that they actually did.

I think the bigger shame tho' is the affect it has on family relationships, and the tainting of memories of a loved one.
I hope you manage to sort out the problem amicably

[Cavewife]

Re: Warning appearance

Thank you. What is happening is absolutely heartbreaking. We are devastated by our loss and this action is causing so much distress. The caveat was entered a week after his death before we'd even had the funeral!

[Peridot]

Re: Warning appearance

Hi Cavewife,
A horrible situation for you. I'm sorry I couldn't get to respond sooner, I have been away with limited access to the internet. Any response now is probably of little assistance now. Hopefully things have moved on?
My understanding is if the 8 day 'appearance' is not complied with then the caveat is automatically removed, allowing the Grant of Probate to be made. I am assuming that all the necessary papers had been lodged with the Probate Registry to allow the Grant to proceed without any further delay?
As far as notification to your sibling regarding the ineffective appearance the Court's would generally write, so if they only responded to the warning the day before the time limit was up then it would be unlikely they would be able to get the appearance sorted in time.
As the 8 days has now passed did the Grant happen?

[Cavewife]

Re: Warning appearance

Thanks for your reply [MENTION=85500]Peridot[/MENTION]. we had to send an affidavit once the 8 days were up stating we had served the warning appropriately, during this period the probate office were still able to accept an appearance. Unfortunately during that 24hr period she got her appearance accepted.
Do you know how long it may take to get a court date? Mediation is not a possibility.

[Peridot]

Re: Warning appearance

How annoying!
Unfortunately the Courts can be somewhat tardy in setting their dates, it very much depends on how busy they are and the backlog of admin they have. There is nothing you can do to 'speed' them up I'm afraid. Have you seen a copy of the Appearance, if so what reason they have given for keeping the caveat in place. Are they still claiming undue influence?
Have they indicated they will be bringing a claim? How do they propose this situation be resolved if they refuse to mediate or discuss matters to reach an agreement?
If they are unwilling to attend mediation to bash out a mutually agreeable solution, the only option open to you as executor is to bring Court proceedings, to force the issue.
The question of costs will always arise which reduces the size of the estate available to be distributed even further and potentially prevents all from getting their entitlement under the Will depending on the size of the estate.
As Des8 pointed out undue influence claims are incredibly difficult to prove.
Did a solicitor draw up the Will? If it was, have you/your solicitor contacted them with a request they provide information relating to your father's instructions? If a solicitor prepared the Will there should be detailed attendance notes confirming that your father knew what he was instructing them to do and confirming the advice they gave him regarding his wishes.
Is your sibling an independent adult? Are you aware of any of the arguments they will try and use to demonstrate that there was undue influence? Obviously not all of these questions can be answered but it may help in establishing what they are thinking.
Do you know what your sibling wishes to achieve? Would you be amenable to any alteration to your father's wishes, bearing in mind the cost of taking this matter to Court and the knock-on significant reduction in the estate value this would potentially cause (and therefore a reduction in the residuary estate available to pay to the beneficiaries)?
I noticed you have started another thread I'll pop in there and see if there is anything I can add.

[Cavewife]

Re: Warning appearance

Thanks
Her appearance states that he was under duress/ didn't have mental capacity. We have responded fully to Lark v Nugus request for information and then received no further response.
My father wrote a will 2011 (home will kit) which was properly signed and witnessed. In july 2016 he was diagnosed with very early stage dementia, his consultant suggested he made LPA provision whilst he had capacity. we promptly arranged for this, at this appt he asked the solicitor to take a look at his 2011 will and make sure it would stand up in court as he was worried about our sibling contesting it. The solicitor was happy with the will apart from his provision for his grandchildren which was worded that the money he wished to leave them was in a certain bank account. She pointed out that if when he died that bank account wasn't current the legacies would fail, so it was agreed the solicitor would draft a new will with the same legacies but worded appropriately. We were not with him during the drafting of the will or the executing of it and we did not have sight of that will until we collected the will on his death. When we informed our sister of her legacy she immediately said she would contest it and wanted a third of the residuary estate. She has been sent copies of the original will and the 2016 will along with the very detailed attendance notes from the solicitor who drafted the will. She made sure he had capacity and understood all of the terms of his will and discussed why he wanted to leave our sibling less than myself and my other sibling. it is a very starightforward estate.
We have just sent a request to evidence their claims.
She is wealthy in her own right and seems to be doing this to cause distress and nuisance.

How annoying!
Unfortunately the Courts can be somewhat tardy in setting their dates, it very much depends on how busy they are and the backlog of admin they have. There is nothing you can do to 'speed' them up I'm afraid. Have you seen a copy of the Appearance, if so what reason they have given for keeping the caveat in place. Are they still claiming undue influence?
Have they indicated they will be bringing a claim? How do they propose this situation be resolved if they refuse to mediate or discuss matters to reach an agreement?
If they are unwilling to attend mediation to bash out a mutually agreeable solution, the only option open to you as executor is to bring Court proceedings, to force the issue.
The question of costs will always arise which reduces the size of the estate available to be distributed even further and potentially prevents all from getting their entitlement under the Will depending on the size of the estate.
As Des8 pointed out undue influence claims are incredibly difficult to prove.
Did a solicitor draw up the Will? If it was, have you/your solicitor contacted them with a request they provide information relating to your father's instructions? If a solicitor prepared the Will there should be detailed attendance notes confirming that your father knew what he was instructing them to do and confirming the advice they gave him regarding his wishes.
Is your sibling an independent adult? Are you aware of any of the arguments they will try and use to demonstrate that there was undue influence? Obviously not all of these questions can be answered but it may help in establishing what they are thinking.
Do you know what your sibling wishes to achieve? Would you be amenable to any alteration to your father's wishes, bearing in mind the cost of taking this matter to Court and the knock-on significant reduction in the estate value this would potentially cause (and therefore a reduction in the residuary estate available to pay to the beneficiaries)?
I noticed you have started another thread I'll pop in there and see if there is anything I can add.

[Peridot]

Re: Warning appearance

So she is receiving the same as the 2011 will, it was only where the legacy to grandchildren came from that was changed?
From the sounds of it her chances of succeeding are slim on the basis of undue influence. However if as you suspect she is doing this to be a nuisance rather than with any intention to make the claim for genuine reasons, you may have no choice but to bring Court proceedings yourselves just to enable you to administer the estate.
Once you have received her response to the request to evidence consider your options with the solicitor. It will be a case of weighing up the cost of fighting (and quite possibly being successful but with the costs being taken from the available estate) and how much it would take to 'make it go away'
Galling I know, it appears from what you say your father had his reasons for the legacies he made and his wishes may not now be honoured in the way he wished, just to save the estate money of a Court claim.
It is so difficult, we all have a tendency to be very cloak and dagger about our wills, older generations even more so, but it would cause a lot less heartbreak if we were more willing to discuss these things while we're still here and ensure people understand why we make the decisions we do.
Do discuss with your solicitor the options once you have the 'evidence.' If she has any sense she will have taken the Larke v Negus documents to a solicitor herself, who will hopefully be saying, stop now you haven't got a hope. Fingers crossed. She is probably feeling very hurt that she hasn't been treated the same as the rest of you, not that that justifies her actions, but it maybe hard for her too.
If you could see your way to mediate this, all these issues could be on the table to try and salvage some family relations maybe?

[Cavewife]

Re: Warning appearance

Thanks for your reply. The only change to the will is wording around the grandchildrens legacy.
The lark v Nugus request was sent by her solicitor and our response was sent to the same solicitor.
Our solicitor will be asking for the costs to be taken out of her legacy, but everyone is so vague about the costs of it going to court, it is difficult to work out what would the financial benefit of making her an offer.

[Cavewife]

Re: Warning appearance

Ps they haven't said if they plan to make a claim themselves. The only proactive response from her was placing the original caveat, all other actions have been reactionary.

[Cavewife]

Re: Warning appearance

They haven't said if they plan to make a claim. Her only proactive response was to place the caveat in the first place. All other response has been reactionary.