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Kasare
Kasare, Solicitor
Category: Family Law
Satisfied Customers: 204
Experience:  Solicitor, 10 yrs plus experience in civil litigation, employment and family law
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Can a brother who is one of the executors of my father's will

Customer Question

Can a brother who is one of the executors of my father's will be sued for undue influence on persuading my father to change his will 6 weeks before his death to my brother's benefit? My father passed away 2 years ago and probate has been approved. Some of the inheritance has been disbursed, but this brother is trying to force through the completion to get his hands on the money. This brother (jobless for the last six years or so) had been living with my father for 18 months prior to his death, cost free, and took the time to destroy all Dad's paperwork. My sister, my other brother and I all understood the varying amounts we had received from Dad prior to his death would be deducted from our inheritances. In the new will, the money was to be split equally, ignoring that this brother had received about 100K already for a failed business venture, credit card bills and who knows what else! Can you offer any advice? Thanks
Submitted: 2 years ago.
Category: Family Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Do you actually have a copy of the previous Will?
Why have you left it this long to challenge the position?
Clare
Customer: replied 2 years ago.

Hi Clare, as a beneficiary, but not an executor, I've not been in the loop for all that has been going on. I don't personally have a copy of the previous will, but will see if my other brother or sister do. I didn't know there was a second will until about a month ago. My sister has wanted to be in charge, but does not seem in control of the situation.

Expert:  Clare replied 2 years ago.
Hi
I assume that your sister has been aware of the change since the start of the process?
Clare
Customer: replied 2 years ago.

I have asked for clarification from her and my other brother, Clare, since they are both joint executors. Sorry this communication takes a while but I'm 13 hours ahead of you, so not able to reply immediately or get rapid responses from my brother (in NZ) or sister (in Aylesbury, UK). We were relying on the solicitor that handled my father's will, but he has shown to be taking instructions from the brother who is trying to get all our money. My sister has now employed her own solicitor to get advice, and he has shown us that the first solicitor has been giving us poor advice in a number of areas.

Expert:  Clare replied 2 years ago.
Hi
What examples of Poo advice have there been so far - and is this also the solicitor who prepared the Will?
Clare
PS no worry about the time delay
Customer: replied 2 years ago.

My sister says "


Ages ago dad told me that regarding his will, I was to be sole exec, there were to be a few bequests, and the rest to be between us 4. I never saw the 1st will while it was in force. I also had power of attorney in the last couple of years of his life as well. So when he died it was a shock to me, that he had changed the terms of the will to make 3 of us executors. At the time I didn't think for one moment that it would cause this amount of problems".


This solicitor was apparently the same one who prepared the second Will, and has been acting solely on my brother's instructions after declaring he could not proceed due to the apparent conflict between executors. Solicitor is claiming additional income from sale of Dad's flat and shares should be declared on a Corrective Account for Inheritance Tax rather than Capital Gains Tax, which means there will be additional 40K bill to pay to IRD than otherwise necessary.


There are other instances of poor service which I can forward to an email address if you are able to supply one to use. Is that enough for you at this stage?
Expert:  Clare replied 2 years ago.
Hi
At the time the second Will was made did your father actually have mental capacity?
Clare
Customer: replied 2 years ago.

Hi Clare, I'm waiting for a reply on this from my sister, but I believe so.

I have also received something from Just Answer which claims I have asked for a refund??? I have most certainly not. I am keen to get a response on my legal question from you, and I appreciate you are needing more details before you can respond accurately.

Expert:  Clare replied 2 years ago.
Hi
That is fine - and I am sorry for the computer generated glitch!
Clare
Customer: replied 2 years ago.

Hi Clare, my sister replies "


Dad was having blood transfusions for some years to rid his blood of protein that had built up due to the myloma. He was going into hospital to have one when his legs gave way. He was kept in so they could check him out.


He had full mental capacity when he went in and was still bright at the end. His body just gave up as he was so weak, which was the reason he had the transfusions, also he was having problems eating and drinking.


Yes I did check the signature and it was his. In the email that Jo replied to yours she did say that dad saw M&M on his own. We did think about challenging the will, but by that time it was too late".


All of which will probably not help my case for suing my brother for undue influence?
Expert:  Clare replied 2 years ago.
Hi
So the only difference was the Executors?
Clare
Customer: replied 2 years ago.

No, the difference was that the money previously received by each of the remaining beneficiaries, as advances on their inheritances, were effectively deleted from the equation. We each understood that the money was to be deducted from the final payments when we received the advance payments. My sister had 45K, my other brother 35K, myself only 6K, and as far as we can work out, this greedy brother has had at least 100K for a failed business venture. The balance of Dad's will is now to be split evenly between us, some of which has already taken place. Can I do anything?

Expert:  Clare replied 2 years ago.
Hi
has your sister confirmed that this is what the previous Will actually said?
Clare