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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 sister appears to have been cut out of my father's will

Customer Question

My sister appears to have been cut out of my father's will by the deception of his second wife. She was only able to pursue a claim so far because of the high fees involved [she is 62 years old, badly disabled and lives on her own with only a small pension]. My husband and I have no interest in the will ourselves but, in order to help her, we recently travelled to have a civilised discussion with the second wife and the other executor involved, to try to clear up the issues. They assured us that she is not "cut-out", that she can apply for loans based on need; that the part of the £325k nil rate band which is our father's money is held completely separate in a trust, and that, when the second wife dies, his portion will be shared equally between my sister and my son. However, when my sister wrote to this pair, to have these points confirmed in writing, it was just as if the above conversation had never happened - they refuse to communicate with her directly, and referred her to their solicitor who has also refused to communicate with her in getting the pertinent points cleared up. It looks to us now as this is not simply a misunderstanding/mistake in the wording of the will, but an attempt to deliberately defraud. Can you please advise, as I am very worried about my sister who is extremely stressed by all this?
Submitted: 1 year ago.
Category: Law
Expert:  Joshua replied 1 year ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.May I ask if you or your sister have had sight of your fathers will please?If not do you know if probate has been obtained?Who are the executors and trustees of his will to your knowledge?
Customer: replied 1 year ago.

Hope you got my earlier reply providing more information? Not sure whether it went through. If not, will resend tomorrow.

Expert:  Joshua replied 1 year ago.
Hello - thank you for your above post. I am very sorry but there is no sign of your earlier reply you refer to. Do you still have the text available to copy and repaste? I am very sorry for the inconvenience.
Customer: replied 1 year ago.

Sorry,don't have original text. 1] My sister had to obtain a copy of the will from the Probate office herself. Despite being named in it as a beneficiary she was not contacted, or informed of her position by the executors.

2] Probate has been obtained [can get date for you if necessary, but over 6 mths ago]. 3] The executors are my father's second wife, her best friend, and her nephew [who is also a beneficiary, together with his sister and mother - please note, my father actively disliked this family]. The will states that on the second wife's death all the monies will pass, in half shares, to the second wife's sister and her two children, and that any "residue" will be divided equally between my sister and my son. Obviously, there is no residue after the two halves are distributed. My husband and I were told otherwise in direct conversation, but the executors are refusing to confirm this in writing to my sister. Either there is a mistake in the wording of the will, or this was "smoke and mirrors" at the time my father signed the will, in very poor health. I was previously an executor in his old will, but this new will was drawn up about 5yrs before his death, excluding my input.

Expert:  Joshua replied 1 year ago.
Thank you. based upon what you say above, I would agree that the does not appear to be any provision for your sister. Accordingly your sister will need to contemplate a claim against the estate but will first need to gather evidence to enable her to assess her claim. A initial place for her to consider starting is to ask for a copy of your father's will file from his solicitors so she 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 they have prepared and which is in dispute he cannot rely on the grounds of privilege to refuse to disclose his file. Your sister can use this to establish the basis the will was made and what observations the solicitor made, who was present and so on. Evidence can also be obtained as to your fathers capacity at the time he made the will through his GP. She can also ask for a copy of previous wills which would hopefully reflect the position your sister understood - i.e. show that there was a change to the will in the latest version. There are several bases on which she can challenge the will. Undue Influence, lack of knowledge and approval: 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 she may wish to consider the alternative. The alternative is that as above she could pursue the matter on the grounds of a lack of testamentary capacity on the part of your father 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 and its terms as compared to the new will and the condition at the time of your father and the quality and extent of accompanying notes made by the solicitor that prepared the same. in addition, your sister will need to consider that your father's wife also has a right to reasonable maintenance in respect of your father's will. Reading between the lines, I believe I'm right in that your father has provided for a life interest to his wife so this is likely to be satisfactory though there is a potential for her to attempt further claims. This will need to be considered alongside any potential claim. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me.
Customer: replied 1 year ago.

Dear *****, thank you very much for your prompt, informative and very helpful reply. I do just want to ask something else before I pass the information on to my sister.

I forgot to mention earlier that the "best friend" [one of the executors] is also on the payroll [as some kind of secretary] of the legal firm who drew up the will.

As I mentioned earlier, this woman assured me and my husband, face to face, that my sister was not cut out etc. [as detailed in my first message] and we actually have all this on record. Given that there is now a refusal to confirm the situation in writing, where does what appears to be a deliberate attempt at deception fit into the picture, as you see it - [particularly as we do have the record of what was said]?

Expert:  Joshua replied 1 year ago.
I am glad it was of assistance. What you say may amount to evidence of some undue influence being placed upon your father in his making of the will. it may also raise a question of potential conflict of interest of the solicitor involved if there is any evidence that he was not acting in your father's interest rather acting in the interests of a third party. Any questions your sister has in this respect, in particular what influence if any was exerted through or on behalf of this individual by the employee whether the employee was instrumental present in respect of the preparation for will consult can be asked in your sisters Larke Nugus request. The solicitor is required to answer all reasonable question surrounding the preparation of the will raised by your sister. If you would like any assistance in preparing a draft Larke Nugus request I would be very happy to let you have a draft your sister can adapt for a fee of £90. It is important that the request covers all areas your sister is likely to need so it is important to get the request right as this can form the bulk of evidence your sister may use to bring a claim. Can I help you with anything else or has the above answered your questions satisfactorily?
Customer: replied 1 year ago.

That really has been an enormous help - thank you so much. I will now pass this on to my sister, and she may want the draft for the Larke Nugus request, in which case I will get back to you in the next few days.

Once again, many thanks, ***** ***** intend to register an "excellent service" rating.

Expert:  Joshua replied 1 year ago.
A pleasure. If I can help any further please do. Best wishes and good luck to your sister.
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
Customer: replied 1 year ago.

Dear *****, my sister has been given fresh hope by the advice you provided. She would like to follow-up your suggestion of making a Larke v Nugus request. Could you please clarify whether she can deal with this herself, at this stage, in order to keep down costs? Or, is it more advisable that she does this through a solicitor [I wonder if this would make it more likely that she would see the full file and would not get fobbed-off]? In which case, are you personally in a position to handle this for her?

In any case, I would like to order the draft document from you. Could you please let me know how I should pay. Also, could it please be sent in a form which makes it easy for me to email it on to my sister.

Expert:  Joshua replied 1 year ago.
I am glad I could assist. Ideally of course she would use a solicitor but in practice she will need to weigh cost and benefit. If prepared correctly there is no reason she cannot make a LvN request herself but it is important to get the request correct and ensure she asks all relevant information in it or she could miss evidence that is pertinent or even vital to her claim. If she would like me to prepare a drsft she can use or adapt I remain happy to do so as above. If you would like to proceed I will need to create an "additional services offer" which will alow us to exchnage emails and you can give me the information I need confidentially so I can prepare a draft. It can be supplied as a pdf or text document for easy editing by your sister. If you would like to proceed let me know
Customer: replied 1 year ago.

Thank you for your prompt reply. Please do go ahead and create an "additional services offer" so that we can proceed with preparation of the draft.

Expert:  Joshua replied 1 year ago.
Certainly. I will do so now. Please be aware that because the site is US owned I have to denominate in US dollars so the figure that appears may not be exactly £90 depending on currency fluctuations. Once complete we can exchange email addresses and proceed as above.
Customer: replied 1 year ago.

Sorry for delay in getting back to you. I am ready to pay and clicked on the link for "additional services" thinking I could then input my card details, but it has just brought me back to this reply box. Please advise

Expert:  Joshua replied 1 year ago.
It appears you have successully accepted the offer whatever you did - thank you. My emal address should be visible. If you can drop me an email I will be able to reply to you and ask you for the information I need. I look forward to hearing from you.
Customer: replied 1 year ago.

Sorry, can't see your email address and an email has come through suggesting I've made payment when I have not managed to do so yet. Do I need to email customer services?

Expert:  Joshua replied 1 year ago.
It may be if you entered your payment details before to ask the question they have been saved. I can see the payment in my account so it appears payment has gone through ok. My email address should be visible on the screen. You may need to refresh the page possibly to see it? If you cant see it I can ask customer services to confirm to you.

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