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Buachaill
Buachaill, Barrister
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Experience:  Barrister 17 years experience
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Background: C= Claimant & Part-20-(1)-Defendant (Named

Resolved Question:

Background: C= Claimant & Part-20-(1)-Defendant (Named Executor), D= Defendant (Cut out of Will), D2 Defendant-Part 20-(2)-Defendant (Beneficiary) In probate after Warning\Appearance, C issued a claim against D. D filed defence and Part 20 Claim joining
D2. Question: How should D2 respond to the paragraphs of D’s defence which form a Part 20 Claim and are NOT included in the Particulars. i.e. shall D2 Deny, Admit or Not Admit these non Particulars paragraphs?
Submitted: 1 year ago.
Category: Law
Expert:  Ash replied 1 year ago.
Hello my name is ***** ***** I will help you.
Do the missing parts apply to D1 or are they directed to part 20 D?
Customer: replied 1 year ago.
Clarification:
The Part 20 Claim appears to be the same document for both C\D1 & D2.
Original Will = C/D1 & D & D2 beneficiaries. After a Codicil is made = D cut out as beneficiary.
After death D enters caveat to stop Probate.
C - issues Warning, D make Appearance, C file Claim (Particulars: Will, Codicil, Caveat)
C - Claims to declare Probate of Will and Codicil.
D - In the Defence which is a part of counterclaim, D alleges that the Codicil is invalid due to Testators want of knowledge and its content ONLY and so further alleges that the circumstances in which the codicil was prepared and executed ought generally to excite the suspicion of the court. It follows by Particulars focusing on establishing these suspicious circumstances. After the Particulars D alleges a very high level of suspicion as to the knowledge and approval and heavy burden on C to prove knowledge and approval. D2 is not referred to but want the codicil to stand.
Question:
What is D2’s position for the codicil to stand? If the court finds there are suspicious circumstances is it solely the responsibly of C to prove the Deceased had knowledge and approval or can D2 also argue this in court, or is D2 excluded according to the contents of the Part 20 Claim?
Expert:  Nicola-mod replied 1 year ago.
Hello,
It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you with your question, but sometimes finding the right professional can take a little longer than expected.
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Customer: replied 1 year ago.
Please continue to search for a Contentious Probate solicitor who can address our query.
Expert:  Nicola-mod replied 1 year ago.
Hello,
We will continue to look for a Professional to assist you.
Thank you for your patience,
Nicola
Expert:  Buachaill replied 1 year ago.
1. Here, the Part 20 Defendant D2 should also deny a want of knowledge and suspicious circumstances, as this is what is advantageous to him. If he admits it, obviously he is shooting himself in the foot. If he merely "not admits" the allegations, then he is merely putting the Defendant on proof of the allegations contained in the Counterclaim. This does not allow him to put forward positive evidence that the Defendant's case is unfounded. So he should traverse the Counterclaim and its allegations by denying them even though it does not mention him personally in the Counterclaim. This permits him to put forward positive evidence that the Testator had full knowledge and there were no suspicious circumstances, when the codicil was added to the will. Ultimately, the case will turn on the actual evidence of the circumstances surrounding the execution of the codicil.
Customer: replied 1 year ago.
Thanks for your answer.
Question: We understand that even if D fails to prove that the codicil is invalid but however succeeds in proving suspicious circumstances, the outcome would rest on C having to prove Knowledge and Approval and D2 would be bound by the outcome of the main Claim. However D2 wants the same outcome as C but feels he cannot rely on C’s diligence. Can D2 make a counter claim to have the full rights as C or does he have to file a new Claim and comply with Section 3 or 4 of the practice direction (pre-action conduct)?
Expert:  Buachaill replied 1 year ago.
2. What Counterclaim would D2 file? What new claim would D2 file? No court is going to allow these matters be litigated elsewhere, such as in a new claim. However, D2 is limited to protecting his own interests. He cannot take on the role of executor who has a different range of arguments to make. D2 can defend these issues but there is no free-standing claim he can potentially make against an ex-beneficiary to a will. D2 is attempting to take things too far here. The bot***** *****ne is that he is dependent upon the legal team hired by the executor to run the necessary legal arguments and evidence as validates the will.3. The other point is that once the codicil has been properly executed and the testator was compos mentis or of legal capacity, then it is very hard to show there was something untoward. The Defendant needs really strong evidence here. (Finally, I find your reference to all these different C,D & D2 confusing. It would be easier to give them their titles, such as executor, beneficiary and ex-beneficiary)
Customer: replied 1 year ago.
Thank you.
The Claimant is only the named executor in the Will/Codicil (and also a beneficiary). The ex-beneficiary placed a caveat to prevent grant of probate. The named executor is asking the court to declare probate. The ex-beneficiary is asking the court to declare the codicil invalid. In these circumstances, can the beneficiary make a new or counter claim to declare the codicil valid?
Expert:  Buachaill replied 1 year ago.
4. It doesn't lie in the mouth of the beneficiary to make a claim that the codicil is valid. He merely asks that the court uphold the will and the codicil and can give evidence on the key issue as to whether the testator was of legal capacity when the codicil was executed. However, there is no counterclaim to make. Either the will and codicil is valid or it isn't. There is no further argument to make, such as, for example, the ex-beneficiary influenced the testator in making the original will. You only get into red herrings when you start making arguments or Counterclaims of this nature.
Buachaill, Barrister
Category: Law
Satisfied Customers: 10408
Experience: Barrister 17 years experience
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Customer: replied 1 year ago.
Many thanks for your answer, The fog is slowly clearing for me.
You describe a lessor complex environment than I feared. I am now confident from your answer that if the named executor can not identify enough evidence to support his claim original, he can still rely on evidence -identified by the beneficiary and used to defend the ex-beneficiaries counter-claim- that the court will hopefully accept as facts.I will ask more questions shortly.

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