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.
May I ask whether you went to mediation or court or have you just decided not to proceed with a challenge to your mothers will please?
Does you solicitor specialise in contentious probate matters?
No we did not go to mediation or court as we where told that it would be to costly by our solicitor.you see there are other
things that that have come in to play , other reports on my mothers health,its a long story, as i said, it may be to late.We just decided to give in as it was going on so long,but now my sister has put thies charges on our homes for her costs she is not content with the £105k say from the maybe sale of mothers house. she wants her expences as well. I the son, have never thourt our solicitor to be much good or on our side and i dont think she specialises in probate matters.Could you answer my question regarding conflict of interest?
cant see any comments?
Sorry for the delay in reverting to you. May I ask if you know the amount of solicitors costs involved please?
Has probate been obtained in respect of your mothers estate?
You mention that your sister has placed charges on your property. To do so she would either need your consent or a court order. Has she obtained either?
solicitors costs where surposed to be 47k odd, but after protest thay are now down to 13k approx.As i said she my sister the benerficery wants all that is in will ( house money etc ) and the expences. As to probate we put a caviate /stop no it for a long time but it is now released to do what may, Yes she has placed a court order in a LIVERPOOL court,on my sister(2) and me it was very late getting to us and we are disputing it.
Thank you. As to the quality of your potential claim against your mothers estate it is very difficult for me to comment on the same in view of the history and it would not be fair of me to contradict advice you have received beyond making some general points you may wish to consider.
There are three possible bases on which you could raise a claim against the will if you are not named as a beneficiary
Two of those bases are undue influence or lack of testamentary capacity. Undue influence is a challenging case to establish because it must be proven and which involves the need to establish coercion. A recent description by Ward LJ in the Court of Appeal explains how Courts should view such claims :- “In all cases of undue influence the critical question is whether or not the persuasion or the advice, in other words, the influence, has invaded the free volition of the donor to accept or reject the persuasion or advice or withstand influence. The donor may be led but she must not be driven and her Will must be the offspring of her own volition, not a record of someone else. There is no undue influence unless the donor if she were free and informed could say “this is not my wish but I must do it”.
Undue influence will not be presumed and must be proven by the person alleging it has occurred. Establishing that the facts imply undue influence is insufficient. The facts must be shown to be inconsistent with any other conclusion. This can be quite a high hurdle.
For this reason most challenges are pursued on the grounds of a lack of testamentary capacity on the part of your mother when she made the will. This can be easier to prove than undue influence particularly as there was a significant 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.
The third base would be under the Inheritance Act on the basis of failure for adequate financial provision by your mother potentially.
Following the Gill case then disappointed children have in general terms a much better possibility of challenging wills than previously even when there is adverse evidence. It is a highly specilised area and it is unlikely that a solicitor who does not specialise exclusively or at least largely in the area would be able to properly represent you and advise you.
Accordingly there is certainly the possibility of a potential claim but it is difficult to be more precise than this without knowing the details and evidence.
In terms of costs there is a basis to require that these are the estates costs to bear and you may consider a request to strike out the claim against you as an abuse of process and on the basis that your sister does not present a valid basis for a claim as require by the civil procedure rules.
If you consider that you may have been poorly advised you may wish to seek a second opinion from a contentious probate specialist before a final decision is made if it is not too late in this respect.
Is there anything above I can clarify for you any further?
Thank you for your comments but i think we are to late in the day, we should have acted some years ago when things were fresh. You may have given us a couple of pointer on the costs item but i will have to leave it at this point.Thank you,N6