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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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My fathers Will was invalid due to an improper signature and

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My father's Will was invalid due to an improper signature and my sister, named as executor in his Will, applied for Grant of Administration. She had received a £30,000 loan from my father a few years before he died which she now says he gifted to her a year before his death. My father was becoming a bit confused mentally in the 18 months before he died and we have been in dispute with her over her claim of a gift. His Will clearly states that his estate should be divided equally between the three of us, something he reiterated often in the years before his death. We have written to her on several occasions and her only reply has been that she would consider the matter if we submit medical evidence as to his mental state, something she knows is not available as he was never medically diagnosed with a problem.

She has now obtained Grant of Administration and says that as part of that process she was advised to obtain evidence of his mental capacity with regard to the 'gift'. As none was forthcoming, as she well knew there wouldn't be, she now says it is viewed as a gift, ie. she doesn't need to pay it back. Does this trump the written wishes of his will and the fact she cannot prove he gifted the amount to her? I am surprised about this and would like to know if mental capacity is something Grant of Administration would require.
Jo C.
Hi.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Please explain why the will was invalid and how she managed to get probate based upon that will or is the will irrelevant and she applied under the rules of intestacy?

Bearing in mind that you have no proof that your fathers mental state was not 100%, if this went to court, how would you satisfy the judge of the fact?
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Customer: replied 3 years ago.

He did not sign his proper full name, just his Christian name.


 


We had all looked at the will several times and not noticed he had not signed it correctly.


 


Nobody picked up on it until she informed us that the will was invalid and that she had to apply for Grant of Administration to be able to close his accounts. So the will is irrelevant to a certain degree as it was invalid and he died intestate although his wishes are clearly stated in the will. As a family we were also well aware of his wishes for several years before he died. Her loan took a fair portion of his estate.


 


After his death she maintained that he gifted her the loan a year before. We said that his mental powers were failing in the 18 months leading to his death and that knowing Dad he would wish us all to share. She responded by demanding medical evidence which she knew was not available.


 


She told us that in order to obtain Grant of Administration she had to list all gifts and that a lawyer had advised her to obtain medical evidence as to his mental capacity. This she requested from us but obviously as he was never properly diagnosed no evidence was available.


 


I need to know how a gift is handled with regard to a Grant of Administration. I did not think it would be necessary to present medical evidence to prove a gift. Surely when applying for the Grant gifts for the last 6(?) years are just listed, they do not have to be proved as such.


 


We are not looking to take her to court preferring mediation but we need to repudiate her insistence that medical evidence was needed in order for her loan not to be listed in the Grant as a gift.


 


 


 


 
As he died intestate with no valid will, the wishes in the will are immaterial and if he left no spouse and just children then his estate is divided equally between children.

The issue here is the £30,000. Was it a gift or was it meant to be a loan and was it meant to be repayable? Did your father give her that because she needed it and he gave it to on the basis that it was an advance on her eventual inheritance?

These are all the questions that the court would have to decide or mediation will have to decide.

I don’t think that your father’s mental state is worth pursuing quite simply because it appears that there is no medical evidence to the contrary and it is merely your word and opinion against your sisters word and opinion and in the absence of any medical evidence it would be taken that your father, even though he may have been of advancing years, still knew what he was doing.

If it could be proved that he did not know what he was doing (which seems impossible from what you have told me) then your sister may have taken advantage of a vulnerable adult or committed theft or fraud.
I can tell you that it is not at all unusual for someone to be given a loan and then, after someone dies, (when there is no proof otherwise) maintain that it was a gift.

You are going to need to come up with some evidence that it was meant to be repaid such as payments having been made in the interim.

The longer ago this gift/loan was made with no repayment the more it points to it being a gift.

If your sister needed the money for some financial reason, that could point to it being a loan or advance of inheritance.

As you appreciate there is no definitive answer to this and all I can do is give you points to consider.

Can I clarify anything for you?
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Customer: replied 3 years ago.

Actually he noted on his original will a loan she had repaid before so a pattern was set and, yes, she did need the loan for financial reasons. Obviously there is more to this than I can put here like all family matters.


 


But what I am really trying to find out and would like your opinion on, please, is if when gifts are listed on whatever form in applying for a Grant of Administration that is all you do, just list them, you do not need to supply supporting evidence for or against. Would it be requested by the official body who issues the Grant?

That certainly helps because there was a previous loan which has been repaid, it seems unlikely that the second "loan" would suddenly become a gift.
When applying for probate, you are absolutely correct, it is not necessary to provide proof, things are just listed.
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