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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Dear Sir/Madam I need urgent advice on completing the section

Resolved Question:

Dear Sir/Madam

I need urgent advice on completing the section of an Appearance dealing with my interest as Caveator. All other sections of the Appearance are complete and satisfactory.

My late sister died of terminal cancer in an hospice 3 months ago, having signed a Will just 7 days before her death. There were/are no other Wills. Neither I nor a half sister - the deceased's only surviving relatives - were beneficiaries in the Will.

Although the deceased had good relations with her brother and sister for almost 70 of her 75 years, and had benefited from their financial and other help, she suddenly and inexplicably cut off her relations with both of them.

Both surviving siblings expected their late sister to repair her relations with them in due course, but that didn't happen. Consequently, they have concluded that their late sister was mentally unwell over her last years, as she had received treatment for mental illness for half her life, there was a history of such illness in part of the family, and she had spent at least one period in a secure mental unit.

As a consequence of the above, her brother lodged a Caveat, and received a Warning several days ago. He now has to mail the Appearance today in order to keep within the allowed 8 days. The only section that he needs advice on is the part after "Full name and address of caveator", and before "Enter an appearance for the above named caveator in this matter."

For your guidance, I wish to contest the validity of the Will as the deceased's brother and nearest relative, on the grounds of one or more of the following;

* Procedure - I have not yet seen a copy of the Will, so a solicitor's judgement on this must be left open.
* There is evidence that the deceased had suffered from mental illness for many years, and, in any case, she was unlikely to be compos mentis 7 days before her death when the Will is dated, as she would probably have been heavily sedated with morphine.

Please advise how I should word the relevant section of the Appearance. I suppose it would go something like the following, but you obviously know best.

"Interest of caveator:-

As the deceased's brother and nearest surviving relative, he wishes to contest the validity of the Will on the grounds of Invalid Procedure and/or Insufficient Mental Capacity."

Please note that I need to receive your guidance by 14.00 today, as I must prepare and mail the Appearance by 17.00 today.

Thank you!
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I clarify that he is completing Form 5 please?

Customer:

The form I have is Form 7, headed as follows:

Customer:

{Appearance to warning or citation}

Customer:

IN THE HIGH COURT OF JUSTICE

Customer:

FAMILY DIVISION

Customer:

(PROBATE)

Customer:

Hello Joshua

Customer:

May I ask if you have specialist knowledge of Probate in general, and Contesting a Will in particular? In this field, the Appearance is a common form, but the wording needs to be quite specific, and I cannot risk getting it wrong today, otherwise I will go beyond the 8 day deadline and lose my ability to contest the Will. Please advise soonest.

Joshua :

Sorry for the delay in reverting to you - I had to take a phone call. I deal with both contentious and non contentious probate matters in private practice.

Joshua :

The first thing to query is the form you are completing. The probate rules provide that in order to enter an appearance to a warning you need to complete form 5. The relevant rule can be found here:

Joshua :

http://www.legislation.gov.uk/uksi/1987/2024/article/44/made

Joshua :

See sub paragraph 10

Joshua :

This is form 5: http://wbus.westlaw.co.uk/forms/pdf/cpf00613.pdf

Customer:

I beg to differ, Joshua: I was given Form 7 when I visited Birmingham Probate Registry.

Joshua :

I can only point you to the probate rules which are in black and white at the above link. I would not want to proceed on the basis you intend to complete another form to that required by rule 44.

Joshua :

The first thing to do I would suggest is either obtain the correct form from the probate registry or ask them for clarification on why they are suggesting you complete a form contrary to that required by rule 44.

Joshua :

From there it is a question of setting out a skeleton basis of the basis for your contention of the will. Based on what you say it will likely be that the testator lacked knowledge and approval of the will owing to their medical condition at the time of the will being signed. In addition if you have evidence of coercion (though this is in practice difficult to prove) you could mention this. On the basis of your contention that the testator lack knowledge and approval of the will you contend you have an interest in the estate by virtue of the rules of intestacy under the Administration of Estates Act

Customer:

I completed and sent Form 7 to The LEEDS District Probate Registry. They accepted this form and the contents, with the exception of the section I referred to in my original question. Leeds Probate Registry sent me an email simply asking for clarification of my entry staing my interest as Caveator.

Joshua :

If you have not seen a copy of the will you may also consider including that you have not been able to confirm that the will complies with the attestation requirements provided by s9 Wills Act

Joshua :

As long as the form is in the correct format as per form 5 it will be accepted but form 5 is the correct form which you should have been given as per the above rules. Providing you have confirmation that they have accepted the form under rule 44 though this is academic - I was just concerned that the form not be rejected on a technicality.

Joshua :

Would you like me to provide some specific wording to consider using in your reply or does the above guidance as to the components you need to consider including give you what you need to revert to them?

Customer:

Joshua, I think we're getting somewhere now!

Customer:

It may be that Form 5 was superseded by Form6?, then Form 7, but it doesn't seem to be important: certainly Leeds Probate are happy with it. As a matter of fact, I didn't use an exact copy of the Form 7 because I don't have an old typewriter anymore, and filling it by hand seemed untidy, so I reproduced Form 7 on my PC and word-processed the entries.

Joshua :

I suspect it may have just been an internal numbering reference the registry uses or some such issue. It is still form 5 in the court rules but I was only concerned in this respect because I understood you had not yet submitted the form. On the basis that you have and it has been accepted it would appear to be academic - as you say if they are happy with it then that is all that matters.

Customer:

In any event, your suggestion - composing the relevant entry in "legalese" - is the answer! I did include "undue influence" as possible grounds to invalidate the Will in the Appearance I sent to Leeds, but, as it's so difficult to prove, I thought of leaving it out. However, it may be better to include it.

Customer:

So, Joshua, will you please compose an appropriate entry for the section declaring my interest. Just as a precaution - in case I've overlooked something - here is the text of the message I received from Leeds Probate;

Joshua :

Undue influence is difficult to prove and is largely unnecessary to consider these days following the case of Gill v RSPCA which was a case involving a lady who left everything to the RSPCA disinheriting her daughter. The Court of Appeal found against the Will because Mrs Gill lacked knowledge and approval of its contents even though she had done her best to exclude her daughter. The Court of Appeal found that lack of knowledge and approval had been established, there was no need to consider the issue of undue influence.

Customer:

Dear Sir,

Customer:

We have received your appearance today however it requires further informationbefore we can seal it. The appearance should show your interest in the estate if the will dated 8/11/2013 was deemed invalid for example you are the executor of an earlier will - please include the date of the will if this is the case or you have a entitlement under intestacy (if there was no other will). Please send a revised appearance form by post with this information included as soon as possible. your faithfully etcetera.

Customer:

I have reproduced the text exactly as I received it - with questionable grammar and punctuation - as the lady sent it to me in a hurry!

Customer:

That's it, Joshua, I await your composition...

Joshua :

Thanks.

Joshua :

You may wish to consider along the lines of the following: "I claim an interest as the Testators brother of whole blood in the Testators estate under the intestacy provisions of the Administration of Estates Act on the following grounds: I have not been able to confirm that the will complies with the attestation requirements of section 9 Wills Act as no copy of the will has been provided to me and therefore contest the validity of the will; I contend that the Testator, at the time of signing the will, given their medical and mental condition lacked the necessary knowledge and approval of the contents of the will."

Joshua :

Is there anything above I can clarify for you?

Customer:

Joshua, you obviously speak the language fluently! Seriously, I 'm sure that will do the trick!

Customer:

I regret it has taken so long to reach a satisfactory conclusion, and you now deserve to go home for a restful weekend!

Joshua :

It should be more than adequate to sustain your caveat. You do not need to prove your case to sustain a caveat just show that there is a potential interest to protect. I am glad I could assist. I apologise for the slight cross purposes at the beginning with the form number - I had not appreciated you had already submitted it and wanted to ensure you didn't fall on a possible technicality.

Joshua :

If I can assist any further as the situation develops please do not hesitate to revert to me

Customer:

Best wishes,

Customer:

Alex

Joshua :

And to you.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though.

Customer:

Yes, as a principle, I understand how important it is - especially in law - to use the right form!

Joshua :

I hope you achieve a successful outcome to your dispute.

Customer:

I have degrees in four disciplines, but Law is clearly not one of them! In the next life, perhaps... Good luck and Goodbye!

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