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Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69252
Experience:  Over 5 years in practice.
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On the death of an Aunt (who died last week) we were to inherit

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On the death of an Aunt (who died last week) we were to inherit her property. All has been fine until a Neice of our late Aunt's husband has decided that she will query why our Aunt made this decision to leave the property to us instead of her. She has therefore instructed our Aunt's (former) Solicitors to put a hold on anything to do with the property.

The neice had always presumed that she would inherit the property, which she probably would have had our Aunt died before her husband, but it didn't happen as she had hoped, and he has been dead for some 10 years. Hence the property and everything that goes with it, was hers to leave to whomsoever she wished.

I believe the Solicitors are hoping to go down the line of "capacity", which at the time of making her Will she had plenty of, due to her failing eyesight her signature was not as clear as it had been in earlier years, however, she was fully au-fait with what she was doing.

The Solicitors, whom in previous years had been her Solicitors, due to their bullying tactics she had taken steps to no longer use them, but they are now saying that when she made the above decision she didn't consult Solicitors, sadly we are not aware as to whether or not she did, (she lived hundreds of miles away from us), we were only made aware of what she had done when she asked if we would sign some paperwork that was being sent to us from The Land Registry. You can imagine how thrilled we were. Papers were signed and witnessed by Solicitors and everything went ahead.

Can you give some advice as to whether these Solicitors a) are acting in the best interests of their Client, and b) how can we establish whether or not she did take Legal Advice, when after all she knew what she was doing.

Any help would be "helpful".
Submitted: 2 years ago.
Category: Property Law
Expert:  Remus2004 replied 2 years ago.
Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Just to clarify, there was no indication that your Aunt did not have full mental capacity at the time?
Customer: replied 2 years ago.

Hello Jo


Yes, she most certainly did have full mental capacity, even when she went into the Nursing Home a long time after this was because of failing health, she never lost her mental capacity.


These areas were regularly monitored being she lived alone with care packages and friends.


She was a very capable and feisty woman.


Regards, Judy.

Expert:  Remus2004 replied 2 years ago.

Whether your aunt had mental capacity at the time of executing the will or not, should be relatively easy to prove or dispute by referring to her medical records. If there is no reference to her ever lacking capacity then there is a presumption that she did not.

The only way of knowing whether she consulted solicitors or not with regard to the new will is to actually find correspondence in the house, which may already have disappeared.

Usually, it is possible to look at will and get a fair indication of whether it was done by solicitors or not. It may also be possible to contact the witnesses to ask them the circumstances surrounding the signing and witnessing of the will.

These solicitors cannot say that she did not consult solicitors. All I can say is what they know factually, which is that she did not consult them. They are under a duty to be honest. Acting in the best interest of their now deceased client, does not come into it. You are their client now it seems and they are under a duty to act in your best interest.

However, the solicitors acting on this should not be instructed by the niece and you should tell them to proceed regardless and ignore her. If the niece wants things to be put on hold, there is already a legal process for that which is called filing a "caveat". That is an order, put on at the probate registry, which stops probate being granted until such time as the caveat is lifted. Usually when the dispute is sorted.

Tell the solicitor to proceed regardless and ignore the niece. Tell them not to have any contact with her whatsoever and not to write to her. There is no reason for them to do so. If the niece wants to do anything about it, she must take her own advice and her solicitors will advise her accordingly.

If the solicitors you are currently using previously acted for the uncle I think there is a conflict of interest and they should decline to act for you or the niece and they should tell you to find different solicitors

Can I clarify anything for you?

Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69252
Experience: Over 5 years in practice.
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