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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 mother passed away last year and probate was granted

Resolved Question:

hi my mother passed away last year and probate was granted in january the property was sold last week and i have now been contacted by a solicitor who says my neice and nephew now want to contest the ammount they were left what can i do
Submitted: 1 year ago.
Category: Law
Expert:  Joshua replied 1 year 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 clarify whether your mother left a will please?

Joshua :

On what grounds do the niece and nephew wish to contest? Are they challenging your mothers will or making a claim under the Inheritance Act?

Customer:

my mother did leave a will they are contesting it on the grounds that they were not left enough money and the fact that the will was made by a will making company not a solicitor and that the will was witnessed by my relatives that just happened to be here at the time instead of using next door neighbours

Joshua :

Thank you. Is there a copy of a previous will your mother made to your knowledge before the latest one? If so do you know if the relatives did better under a previous will?

Customer:

my mum and dad had a will when my father died everything went to my mum she decided to make a will when she was diagnosed with dementia so that she could have control over what happened to her money there was no other will found when emptying her house my neice and nephew said that my mum had told them she would leave them well cared for but she also told many people the same thing they had only visited a hand full of times in the last 7+ years and she never knew who they were i had been my mums sole carer for the last 6 years

Joshua :

Thanks. So in brief summary would it be accurate to say that your mother made a previous will in which niece and nephew did not benefit but has subsequently made a new will leaving somthing to them but not as much as they had hoped?

Joshua :

Finally could you tell me if niece and nephew were financially dependent upon your mother before her passing? I presume they were not but I asked for the avoidance of any doubt

Customer:

no other will just the one where she left all 5 of her grandchildren 5000 each and the rest was for me after bills etc were paid

Customer:

they were not financially dependent on her both have careers

Joshua :

Thank you.

Joshua :

Based on what you say, I cannot see that your niece and nephew have anywhere to go with their claim.

Customer:

i recieved a letter this morning from his solicitor saying that i had done wrong by sending them cheques and paying the bills etc and wanting to know which will company was used but this was 10 years ago and i have no idea should i not use any of the money how should i respond to there solicitor

Joshua :

Before I continue may I understand the relationship to you. How many siblings do you have and are they all still alive? Presumably the niece and nephew to whom you refer are offspring of one of your siblings

Customer:

my neice and nephew are my deceased sisters children she has been dead for over 15 years

Customer:

i have no other siblings

Joshua :

Thanks. There are two bases on which they can mount a potential challenge: the first is under the Inheritance Act on the basis that your mother has failed to adequately financially provide for them however this claim would not appear to have any merit as there is no requirement under the inheritance act for your mother to provide for them unless they can demonstrate they were financially dependent upon her prior to her passing

Joshua :

The other approaches to challenge the will itself which, presuming they were not financially dependent upon your mother as you say, would appear to be the only basis on which they could mount a potential challenge. They may consider challenging the will on grounds of capacity or under a claim of under undue influence or lack of knowledge of the will contents and much would turn on the quality of evidence among other things as revealed by the will comany's will file.

Joshua :

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”.

Joshua :

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.

Customer:

this is so distressing as i feel that i am being questioned i always did my best for my mother does it make a differance that the will was not done by a solicitor

Joshua :

For this reason claimants typically consider an alternative. The alternative is that as above they could pursue the matter 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 but such a claim turns on whether it is reasonable to have expected the testator to provide for the party claiming. Wheer the party claiming is a child, that child is in a generally good position following the case of RSPCA v Gill but where the relative claiming is a remoter relative, they are not in a good position in respect of such a claim. There is no general expectation that a testator would or should provide for relatives who are not children.

Joshua :

If they were successful in challenging the will the will would revert to any previous will or failing which to the intestacy rules under which your deceased sister would be enetitled to an equal share in the estate and the niece and nephew would take their parents share.

Customer:

do you think that i should reply to their solicitor they say i must not use the money and shouldnt of sent cheques

Joshua :

The first step is to contact the will maker and ask for a copy of their file particularly the notes they made as to your mothers capacity and a statement of the person that made the will as to her capacity. Based on this you can then form a judgement on whether you feel your mother had capacity at the time of making the will. Her GP can also provide a statement to this effect. Next if you feel that niece and nephew are serious in pursuing litigation, you would do well to consider obtaining counsel's opinion on the matter. Such claims turn very much upon case law and the circumstances and evidence obtained from the will make and capacity of your mother at the time. Seeking counsel opinion is not overly costly and will give you some substantial assurance as to the position. You may consider contacting Annie Ward who is very good and is not very expensive as she is a more junior barrister.
http://www.pumpcourtchambers.com/areas-expertise/inheritance-wills-and-probate

Joshua :

She should be able to prepare a detailed opinion for you for less than £500. This is not required but it will give you a much better understanding of the chances of success of the nephew and niece. Generally unless they can show an obvious defect in the will or that your mother lack capacity at the time she made the will my view is their claim is not strong but this is limited by not having the benefit of any of the relevant evidence necessary to consider to form a well rounded opinion on the matter.

Customer:

i cant remember who the will company was as it was so long ago and she choose them

Joshua :

Claims of this sort are distressing and particularly personal however retaining counsel opinion can bring a degree of clarity and can have the effect of heading of spurious claims off at the pass.

Joshua :

The may be an address stamp of the will company on the will itself. If they cannot be traced then they cannot be traced and the niece and nephew will be limited to relying on medical evidence to demonstrate capacity.

Joshua :

Is there anything above I can clarify for you?

Customer:

no thank you for all your help i will contact annie ward

Joshua :

A pleasure. I hope the matter is resolved quickly and to your satisfaction. If I can assist any further as the situation develops please do not hesitate to revert to me

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, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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