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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33529
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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My partner (Hugh's) mother died recently at the age of 88.

Resolved Question:

My partner (Hugh's) mother died recently at the age of 88. She left him when he was 2 1/2 and he has never lived with her. He has only had spasmodic contact with her during his life, but more latterly not through trying. He is 62. She had re-married and her husband died in 2006 after c. 30 years of marriage. Hugh's stepfather's Will stipulated that his estate should pass to his wife (Hugh's mother) and following her death, £5k should go to each of Hugh's 3 children, and the remainder should be split 6 ways between his step-father's three children, his son's two daughters and Hugh. We have a copy of this Will and Codicil dated 6/2/2003. She sold her husband's and her family home just over a year ago, buying and moving into a retirement apartment nearby (in Harrow). Since then, she has spent the majority of the year in a care home, although the retirement apartment was not sold
We have been informed by the former family solicitors that she made a will in 2006 which she took away from the solicitor's office.
Now she has died, it transpires that her step-son is the executor of her will along with a friend of hers.
We are convinced the step-son is being dishonest in this matter (at the very least economical with the truth purely by non-disclosure of facts). We know, for example, that when asked repeatedly by the care home Hugh's mother was in who the next of kin was, the step-son denied all knowledge of Hugh - this is not true. He has also been very cagey about any other details - denying he knew he was executor, etc.
We need to know Hugh's rights in a case like this. He has spoken to his mother's solicitor who will tell him nothing (and was quite rude and abrupt). He said that Hugh would be contacted if necessary.
To us this sounds like he has been excluded from the Will and will therefore not be contacted! How can he find out if this is the case? How good are his grounds to contest the Will? He is her only child and, in addition, was included in his step-father's Will, as stated.
Please help?
Submitted: 2 years ago.
Category: Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Just to check - I assume that the provision on her husbands Will actually refers to what would have happened IF his wife had died before him?
Clare
Customer: replied 2 years ago.

Hi, Clare,

Hugh's step-father's will says:

"Residue

SUBJECT as above (Executors to hold his Estate upon trust) my Executors shall hold my Estate

1. for my said wife Elizaeth Murray absolutely if she shall survive me by 28 days and PROVIDED that the gift shall not otherwise lapse

2. Subject as above for such of my children TGM ..., JDS ... and CJM ...and my Step-son Hugh La Trobe ... as shall survive me and if more than one in equal shares absolutely.

Powers

My Executors shall in addition to an without prejudice to all statutory powers have the powers and immunities set out in the Schedule provided that they shall not exercise any of their powers so as to conflict with the beneficial provisions of my Will.

The step-father then did a codicil giving £5k to each of Hugh's 3 children and saying

2. I HEREBY REVOKE Clause 5.2 of my Will and substitute therefor:

SUBJECT as above my Executors shall hold my Estate for such of my children TGM ..., JDS ... and CJM ... and my step-son Hugh La Trobe ... and my Granddaughters KM and AM as shall survive me and if more than one in equal shares absolutely.

Hugh's mother was the executor of her husband's will. It doesn't seem to say anything about if she died before him.

Does this help at all?

Kind regards,

Anna

Expert:  Clare replied 2 years ago.
Hi Anna
I thought so.
i am afraid that the wording simply referred to what would have happened if his wife had died before him - not what would happen in the event of her death.
Since he was not financially reliant on his mother in any way your husband's only argument for challenging the Will would be Undue influence
http://www.lawontheweb.co.uk/Probate/If_the_Will_is_Contested/Reasons_for_Contesting_a_Will
As a starting point your husband should file a Caveat at the Probate Registry to ensure that the executors have to negotiate with him
http://www.charlesrussell.co.uk/UserFiles/file/pdf/Trust%20&%20Fiduciary%20Disputes/T&FDEntering_a_Caveat_at_the_Probate_Registry_-_March_2009.pdf
I hope that this is of assistance - please ask if you need further details
Clare
Customer: replied 2 years ago.

Dear Clare,

Many thanks for your reply which is very helpful. Could you also advise please, if Hugh takes out a Caveat, which would be the best reason for doing so? He is getting no information from his step-brother and suspects that his mother has cut him out of the will completely. If he has been cut out, as her only child, does he have any recourse for contesting the will because of that?

Kind regards,

Anna

Expert:  Clare replied 2 years ago.
Hi
He should do this on the basis that he believes that the step son used Undue Influence to persuade his mother to change the Will.
He should also write to the solicitor who dealt with the newest Will and ask for a copy of the file under the basis of Larke - V - Negus.
This is a case which established that where there is a question mark over a Will a copy of the file should be released before proceedings are issued to allow the potential claimant to see if there is a real case to answer.
Clare
Customer: replied 2 years ago.

Hi, Clare,

Thanks once again for your help. Just one more question! Hugh has been informed by the unhelpful family solicitor that the two executives are the step-brother and the family friend/accountant. The step-brother said last night that he was the only executor and the other man is only there in case Graham does not do things correctly. This sounds very odd to us. If there are two appointed Executors, can they operate in this way, in other words one doing everything and the other not involved?

Kind regards,

Anna

Expert:  Clare replied 2 years ago.
Hi
Yes this can happen - an executor can have "powers reserved"
Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33529
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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