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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25410
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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HI SITUATION Last week my widowed childless aunt died

Resolved Question:

HI

SITUATION
Last week my widowed childless aunt died aged 91 - assets - house + cash circa £1m. Whilst alive her POA and executor was her nephew from her deceased husbands family. I recall receiving a letter from a solicitor notifying me that the nephew would be executor, but at the time I did not challenge although thought it odd that my aunts affairs were being taken care of 100% by her late husbands family.

Anyhow, she is now dead, survived by her 3 siblings (all in their 70/80s) plus siblings in law, nieces, nephews on the husbands side.

The funeral was yesterday arranged by her nephew (executor and POA). He did not volunteer any information about the will or next steps yesterday. So as her nephew too I asked (although felt embarrased) what happens next with the will/probate process so that I can tell her siblings? He mumbled and shifted, but said that he had asked for the will to be sent from one solicitor firm to another solicitor firm who he wants to deal with and he will go from there and be in touch. Note he didn't volunteer any will details at all, but I didn't ask for the contents either. So all sounds good doesn't it from the outside? Although i would have thought that if he knew the will and the two sides of the family are in the same room why he couldn't have just briefly told us I don't know; It made me feel really uncomfortable.

However....

I believe that as soon as my aunty died the locks were changed on her house, such that her sister couldn't get in and when she asked to have access they refused to let her back in. Remember this is the nephew of the late husband refusing to let my aunts sister in!

I believe that when my cousin and my brother had visited my aunt in the past there were mutterings about how my cousin and aunt didn't trust the POA. Examples are when my dead aunt asked to revise the will they shunned her, when she wanted cash it was hard to get it without full justification and they think that her daed husbands will/wishes will remain leaving all of it to his family, plus other aged aunty mutterings.

I did call the new solicitor yesterday and as yet they hadn't received the will albeit they thought it odd that the will was being moved given the other firm was in another town but still local to the executor. She said if you or her living siblings are beneficiaries you will be written to within about 1 week of us getting the will. If you are not a beneficiary then you will not hear from us.

As nephew I don't expect to get anything as I wasn't close to her. However her 2 sisters and brother were. And the estate value was achieved because they won the lottery whilst married.

QUESTION
- If we do not hear from the solicitor in the next 2 weeks what should we do next?
- If there is nothing in the will for my dad and his sisters and instead it all goes to her late husbands family how might I be able to challenge that on my fathers behalf and my 2 other aunts?
- If I can contest it on behalf of my Dad who has dementia, but I have POA and he then dies - what happens then?
- What if my dad dies next week will he still inherit if a beneficiary?
- How likely is it that her other nephew already knows all the will details?
- If he does know the contents why didn't he give us a heads up at the wake yesterday?
- How can I check whether this nephew as POA carried out his duties properly and did not steal from her estate?
- Why would he not have had one of my dead aunts family members as joint POA or joint executor so that her care was more balanced?
- How long do I need to wait before I can get a copy of the will if my dad is not a beneficiary?


My gut feel is that I smell a rat and on principle its wrong.

Thanks
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 :

Do you know when the will in question was made roughly please and if there were any previous wills?

Joshua :

Did your aunt have any mental capacity issues at the time?

Customer:

Her husband died 21 Oct 2010 so I guess after that.

Customer:

I am unaware of any mental issues until shortly before her death - at 90+ she was frail and suffering from cancer.

Joshua :

Thank you. do you know why her siblings or their respective children did not involve themselves more closely with her affairs? from what you say, they were relatively close. Have you discussed the issue with her siblings insofar is whether they would wish to take any form of formal action to challenge the potential adverse will

Customer:

Her siblings are elderly and I am not sure whether they were ever asked. Certainly my dad who saw Muriel was not asked and the other sister is in her 80s and lives far away and the other sister I believe was not asked either - although I would need to check. I'd say they were close as in pleased to see each other, kept in contact as much as ageing folk without transport do. Whilst the nephew I refer to was POA and saw her and dealt with her care day to day. As far as challenging a potential adverse will I would certainly like to - my dad has demntia so I guess he might not count, the 80+ sister would likely be too afraid whilst the younger one who lived with Muriel more recently might.

Customer:

As for the respective children...

Joshua :

Thanks. Do you know if any of your other aunts and uncles would wish to formally challenge the will if it is adverse to them?

Customer:

My brothers attitude has been its up to Muriel

Joshua :

Thanks. Do you know if any of your other aunts and uncles would wish to formally challenge the will if it is adverse to them?


Customer:

My sister wasn't interested. I work away and let it slide although it was on my to do list to write back but I never did. Shameful really. And the daughter of my other aunt is ineffectual and as for other nephew and nieces I guess they were not interested as they live far away. The funeral yesterday and the recent odd behaviour has just set alarm bells off.

Customer:

Potentially if I make the facts clear to them.

Customer:

Let's assume they would.

Joshua :

Thank you. the estate is oversize were a challenge with potentially the worthwhile in terms of the potential legal costs associated with such a challenge if it proceeded to court. initially, the position is one of information gathering...

Customer:

sorry can you retype the last comment - I don't understand it.

Joshua :

Sorry certainly - dictation software meltdown - apologies. The estate is of a size where a challenge would be potentially worthwhile in terms of the potential legal costs associated with such a challenge if it proceeded to court. initially, the position is one of information gathering...


Joshua :

A initial place to consider starting is to ask for a copy of your aunt's will file from her solicitors that prepared it 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 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.

Customer:

Even though I am her nephew?

Joshua :

Thank you. There are a number of avenues of approach. Based on what you say your aunts and uncles may consider a challenge to the will on grounds of capacity and you 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 will file. The persons with the best claim to the estate would be your remaining aunts and uncles. Accordingly, if you wish to assist, you would likely need to proceed on the basis that you act as their agent. A claim by you personally woud be more challenging as your aunts and uncles would have the initial better claim unless a previous will can be uncovered which names you as a significant beneficiary

Joshua :

Undue influence is a challenging case to establish because it must be proven and which involves the need to establish coercion. 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 aunt 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.

Customer:

But don't you have to be of sound mid to sign the will in front of the solicitor??

Joshua :

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.

Joshua :

Much here is likely to depend on the existence and date any prior will and its terms as compared to the new will and the condition at the time of your aunt and the quality and extent of accompanying notes made by the solicitor that prepared the same together with any medical evidence you can obtain. Whilst you are gathering evidence you may wish to consider lodging a caveat to prevent probate being obtained until you can decide whether you intend to pursue a claim.

Joshua :

a solicitor is certainly supposed to assess the capacity of the person making the will, but often this is either not done properly or not done to the standard that is required by the court or whilst it may have been done, sufficient evidence to demonstrate that it was done is not retained on the file.

Customer:

Oh I see. If the funderal was yesterday when would be the best time to lodge a caveat?

Joshua :

if the solicitor has not made sufficient notes and cannot give a statement as to the capacity of the testator, capacity can be questioned, particularly where there is medical evidence from for example your aunt's GP with regards XXXXX XXXXX level of capacity at the time; obtaining medical evidence is a key component of the information gathering process

Joshua :

It can be lodged at any time before probate is obtained. Probate is not likely to be anywhere close to being obtained yet but there is no particular reason to delay passed the point you have established that one or more of your aunt's uncles would be keen to look at potentially challenging any adverse will. it is inexpensive to lodge a caveat and can be withdrawn at any time. would you like any information as to how to do so?

Customer:

How do we gather medical evidence from the GP?

Customer:

I guess to lodge a caveat we just find a local solicitor?

Customer:

And do it if we have not heard from the solicitor within the next 2 weeks.

Joshua :

you can do it yourself. All that needs to be done is write to a local probate registry (and will do) with:



  • a signed request, asking for a caveat to be entered

  • the full name and date of death of the deceased, as recorded in the register of deaths, (in addition, you may also give any other names used by the deceased).

  • the last permanent address of the deceased.

  • your own name and address. This is the address to which any papers or correspondence relating to the caveat will be sent or served upon you. This must be an address in England and Wales. This may be best to be one of your aunts and uncles.

Customer:

OK. Do you think the executor knows already the will contents given he was POA too?

Customer:

How can we pursue the nephew to check whether he managed her affairs as POA appropriately when she was alive?

Joshua :

Not necessarily. an attorney has no rights to you see a copy of someone's will before they have passed away. they can only be given a copy of the will by a solicitor if they are the executor or and have a copy of the death certificate so it is possible that they genuinely do not know what the contents are. with almost all contentious probate claims, initially it is promised impossible to form a view as to whether you would wish to make a claim and if there is a basis to make a claim. initially, it is very much a question of gathering information using the above techniques which you may either do yourself or funds permitting, would instruct a solicitor to assist you with

Customer:

I have applied for a copy of her dead husbands will from the probate office just to see what he had set out - as I know he was a bully.

Joshua :

if you have concerns with regards XXXXX XXXXX way in which the attorney dealt with her affairs during her life then these can be raised as part of any formal challenge with regards XXXXX XXXXX will in terms of requesting copies of bank statements and so on but this is some way down the line

Joshua :

is there anything above I can clarify for you?

Customer:

I have to collect my daughter from the ferry .... so could you just answer these 3 so that I have the info. when I get home please? 1/ how to get info from the GP? 2/ If we haven't heard anything in 2 weeks and assume there is nothing in the will for the siblings is it correct then that I apply for a caveat and chance my arm to ask the other nephew what was in the will? 3/ How do I check that the nephew managed her affairs whilst she was alive as POA?

Customer:

ignorethe last one you just answered that.

Customer:

If I act as agent - what happens if my dad or one of the other siblings dies once I lodge a caveat?

Joshua :

Their executor(s) would continue to act on their behalf. They can continue to pursue the claim in the testators stead.

Joshua :

is there anything else I can help you with?

Customer:

GP?

Joshua :

general practitioner - her doctor.

Customer:

I know - but how do I get the info. about her mental /physical state at time of writing the will?

Customer:

Lastly I guess it would be cheaper for me to gather what I can and then go to a solicitor for formal assistance?

Joshua :

Oh I see - my apologies. it is possible for your aunts and uncles to write to your aunt's GP advising that they are investigating the validity of her will and asking the GP to provide an assessment of capacity at the time the will was made. This is not a service provided by the NHS and the GP will expect to be paid have their fees are usually in the order of about 75 and £125.

Joshua :

if you have the time and letter writing skills to gather the information first, this will of course reduce legal costs but it will take up some degree of your time so it is very much a personal question for you as to whether you are prepared to do it or not

Joshua :

is there anything else I can help you with?

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

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

Joshua and other Law Specialists are ready to help you