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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11750
Experience:  30 years as a practising solicitor.
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Can a will that is not done by a professional wipe out one

Customer Question

Can a will that is not done by a professional wipe out one that has.
When the person is old blind and deaf. I believe that if person is vulnerable and has disabilities that there must be a certain procedure. Is this true or not.
Submitted: 1 year ago.
Category: Scots Law
Expert:  JGM replied 1 year ago.
The general rule is that the later will supersedes the earlier one provided that it is signed, witnesses and dated property.
However, if the person is ill, and particularly blind, the will has to be executed by way of what is called notarial execution. That means that the will has to be read over to the person by a notary public and the notary public would typically sign the will on behalf of the testator.
Happy to discuss.
I hope that helps. Please leave a positive rating so that I am credited for my time.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.
Hi, I contact the lawyer relaying the information you gave me about the notary execution.
She has responded stating because he could write is own name it did not need a lawyer.
However my father was very ill, blind and deaf. And very vulnerable, He was also in a wheelchair unable to move by himself at ripe old age of 96 years old. As my sister live with him ( she had got him to sign house over to her many years before}
She barred us access to the house so that we had no way of talking to him after she discovered he had made a will. Knowing that my father would not have left her any money. ( this is another story
Expert:  JGM replied 1 year ago.
A challenge to the will could be made on the ground that it is void on ground of what is called facility and circumvention. That means someone with the power to influence a person who is weak and vulnerable whough age or infirmity. That certainly seems to be case here and there is no doubt in my mind that a notary should have been involved at the time for someone who is blind and/or cannot write. How does the blind person know that he is signing the right document with the right information in it?
Customer: replied 1 year ago.
I have already sent an e-mail stating this. Only from blind aspect. so I will do another.
Can this lawyer who is the sister in question lawyer. refuse to accept this.
How else can I contest it if she refusing to accept it ? And can she reject it on the above basis?
Expert:  JGM replied 1 year ago.
Your opponent is the executor of the estate. You have to have your own lawyer to act for you. They don't have to accept anything but their actions can be examined by the court if they are wrong. From what you have told me, my opinion is that the will could be challenged.
Customer: replied 1 year ago.
If it went to court who would have to pay costs?
And what would be my chances of winning.
Expert:  JGM replied 1 year ago.
The winner would pay the costs usually. From what you say you would have a good chance of success. Your own solicitor should review all the evidence, however, before a final decision is taken.
Customer: replied 1 year ago.
The amount in question is not a big amount in terms of paying court costs. £30 000. Trouble is none can even give me an estimate of what it would cost. this is a bit of a moral crusade as this sister has insured that she got everything from my parents.
I am trying to get s something for all his grandchildren. As you will see I have asked a various of questions mind field of issues that have gone on for years. but your answers are giving me hope. if they come to fruit I will come back a leave a massive tip. Do you have any idea of what a court cost would be for something like this?
Expert:  JGM replied 1 year ago.
It's very difficult to say as court work is done on a time spent basis, not a fixed fee. However, I have known cases which have cost in excess of £20000 or more so it certainly is not cheap to litigate a contested will.
Customer: replied 1 year ago.
From what I have been told by you, can my sisters lawyer refuses to accept my claim for my father as his originally benefactor.
with a will executed in the way you said it should be.
Surely it is not for me to take her to court but for her to take me if she doesn't accept it.
After all I am the one who has complied with the law.
Expert:  JGM replied 1 year ago.
Unfortunately not; it's you who has to challenge the will.
Customer: replied 1 year ago.
I have, so does my sister lawyer have the say one which one she accepts.
Expert:  JGM replied 1 year ago.
No, if you challenge the will and they don't accept your challenge you have to consider taking it to court. Your sister instructs her lawyer, not the other way round.
Customer: replied 1 year ago.
She is not directly my sister lawyer, my sister is benifactor of my late mums estate.
She did say would discuss it with my brother who was my mums executiver along with lawyer. So would it then be my brothers decision?
Customer: replied 1 year ago.
What I don't understand is if this is the law
That an old vunteble blind person must have will done by a lawyer.
.how can lawyer reject one that is?
Expert:  JGM replied 1 year ago.
The executors decide what to do about a challenge to the estate, will etc.
Customer: replied 1 year ago.
If I don't agree with what they decid can I go to who ever governs lawyers or must it be court?
Expert:  JGM replied 1 year ago.
If you think a lawyer has acted improperly you can go to the Scottish Legal Complaints Commission. They can deal with a complaint but only the court can overturn the will.