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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.
Please accept my sympathies for the loss of your uncle.
Do you know the approximate date of he first will he made leaving half to his ladyfriend please?
Do you know the ball park worth of your uncles estate?
Thanks. How long had he been with his ladyfriend? From what you say was this more of a friendship than a romantic relationship?
Thank you. There are a number of avenues of approach. Based on what you say you may consider challenge the will on grounds of capacity and your cousin may have a claim under undue influence or lack of knowledge of the will and much would turn on the quality of evidence among other things as revealed by the solicitors file. In particular from what you say they had a long relationship, albeit she appeared not to stand by him in his final time in terms of care, but nevertheless the length of their relationship will inevitably count in the lady's favour.
A initial place to consider starting is to ask for a copy of your uncles will file from his solicitors so your cousin 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 if 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.
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 your cousin could pursue the matter on the grounds of a lack of testamentary capacity on the part of your uncle when he 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.
Much here is likely to depend on the existence and date the prior will was made. If is was made at a time when there were no questions or significant questions as to capacity of your uncle which cannot so easily be said at the time he made the latter due to his diagnosis of dementia then given the length of their relationship this may be a difficult challenge in terms of increasing your cousins share though it may still be possible to challenge the second will though this would on its own have limited if any financial benefit to your cousin though ti would from what you say disadvantage the ladyfriend.
Yes the latter will would appear to be very suspect potentially however as per my last post above, if it is found that he made another will some years earlier when his mental capacity was not in question leaving 50% to his ladyfriend then if you were to successfully challenge the later will the original can be reinvoked so this would not necessarily benefit your cousin.
However at this stage it is a question of information gathering. Until you obtain the will file and investigate the earlier wiil in terms of its date and surrounding medical evidence from your uncles GP it is not possible to form a view on whether something is worth challenging or not. There is the potential for a challenge here however whether it would be worthwhile would in no small part turn on the date and contents of the earlier will as above. Ideally your cousin would be able to show a significant change of his fathers will at a later stage of his life to best frame his claim.
Your cousin can make a request for his fathers will file(s) himself referring to Larke v Nugus in his letter and can also contact his fathers GP to obtain an assessment of capacity at the dates of the wills. From there he can better consider whether he feels he can show that his father changed his testamentary wishes at a point where he was likely to have not been clear on what he was doing
A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me particularly when you have been able to obtain some further evidence.
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