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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My cousin Doreen Orr died recently and was an only child there

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My cousin Doreen Orr died recently and was an only child there are 7 cousins, she made a will shortly before she died and had Alziemers disease for at least 3 years . One cousin who lived nearby Doreen who had power of attorney had the will changed while Doreen was in a Nursing home weeks before she died of Alziemers and Kidney failure to make herself and her 2 children beneficeries. The will has now gone to Probate .Do we have any right to contest the will.

Mrs Margaret Pratt
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 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 ask if your cousin made any will prior to the last will she made to your knowledge please?

Joshua :

Was the will made with a solicitor or in another way - e.g. a home made will or will writer?

Customer:

To my knowledge no will was made prior to her illness she never married and had no children the will was made by a solicitor

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and 2 other Law Specialists are ready to help you
Expert:  Joshua replied 2 years ago.
Many thanks. Has a grant of probate been issued to date please?

At the time she made the will was her condition fairly advanced to the extent that she would have lacked the capacity to make a will please?
Customer: replied 2 years ago.

As far as we know no probate has been issued. At the time she made the first and second wills her condition was fairly advanced We understand the solicitor who prepared the will for our cousin in question [ Laura ] is XXXXX XXXXX Aykley heads Durham

Expert:  Joshua replied 2 years ago.
  1. Thanks. Finally how many of your fellow cousins would be prepared to consider taking action along with you?
  2. Do you know the approximate value of the estate?
Customer: replied 2 years ago.

All 7 cousins would be prepared to take action. The approximate value of the estate is in region of £150,000 but understand that some may have been spent and her car has taken and valuables.

Expert:  Joshua replied 2 years ago.
Thank you. |If your cousin lacked mental capacity to understand the will at the time it was made it will be void. If she was in care it is likely that there will be substantive medical evidence to support such a position.

Given the value of the estate and the number of cousins involved - on the basis that notwithstanding the will each of you would be entitled to inherit - it is ideally important that each of you join forces because for one of you to indiviudally take action may expose you to too greater risk in terms of costs based on your individual entitlements though based on what you say your claim would appear to have merit. Ideally you may between you appoint one or two of you to act as mouthpiece for all of you but jointly instruct a solicitor to assist you.

The first step is likely to be to prevent probate from being obtained by entering something known as a caveat with any local probate Registry. This is a simple process whereby probate cannot be granted until the It is withdrawn or alternatively the person lodging the caveat is deemed to have no legitimate reason for lodging the same. You can request a caveat by simply contacting a local probate registry and asking to issue a caveat including your cousins name, address, date of birth, death and saying you wish to enter a caveat and enclosing a cheque for £20 made out to HMCTS.

 

 

A initial place to consider starting is to ask for a copy of your cousins will file from her solicitors so you can read their notes. This is known as a Larke -v- Nugus request following the judgement of the same name which confirmed that such rules are to apply where a solicitor is asked to disclose information about a will which she has prepared and which is in dispute he cannot rely on the grounds of privilege to refuse to disclose his file.

 

 

 

There are a number of avenues of approach. Based on what you say you may consider challenge the will on grounds of capacity and you may have a claim under undue influence and much would turn on the quality of evidence among other things as revealed by the solicitors file.

 

 

However 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 you may wish to consider the alternative. The alternative is that as above you could pursue the matter on the grounds of a lack of testamentary capacity on the part of your cousin 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. 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.

 

Mediation can be proposed before any litigation and can often be a means to resolving disputes particularly when the latest will would appear to be so precarious in terms of your cousins capacity. Medical evidence is likley to be essential in proving your claim.

 

In practice as above you will likely need to appoint a solicitor who specialises in contentious probate matters. Take care to interview any solicitor you consider appointing to ascertain they have substantial experience in contentious probate matters. Many do not but still undertake the work which can leave you at a disadvantage.


 

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and 2 other Law Specialists are ready to help you

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