How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • Go back-and-forth until satisfied
    Rate the answer you receive.
Ask F E Smith Your Own Question
F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 17249
Experience:  I have been practising for 30 years.
18203470
Type Your Law Question Here...
F E Smith is online now

I need some advice on adjusting or changing a will? Can you

Customer Question

I need some advice on adjusting or changing a will? Can you help?
JA: Where are you? It matters because laws vary by location.
Customer: Thetford in Norfolk. UK
JA: What steps have you taken so far?
Customer: Its mainly relating to my father who made a sound will in 2017 and became incapacitated in 2019, me and my sister have POA for him, however she hasn't been around for many years and has suddenly been taking him to his solicitor to view his will and it worries me she is trying to change something
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Thats roughly it, I just want some peace of mind
Submitted: 12 days ago.
Category: Law
Expert:  F E Smith replied 12 days ago.

Welcome to Just Answer.

I will be happy to assist with your question today. I need some time to consider this and compose a response. There is NO need to wait online because you will get an email when I respond. Sometimes it will be minutes, sometimes longer.

I apologise for any unavoidable delay, but rest assured I have not forgotten your question.

how did you find this out?

and what is it that you suspect please?

Customer: replied 12 days ago.
My father told me he had been taken to the solicitor and so I rung them, they confirmed he had been to appointments. My sister has a history of popping up when money is at stake and now dad is capacitated I'm concerned that I will miss something!
Expert:  F E Smith replied 12 days ago.

You can amend a will with a codicil. However my advice to you is don’t. In the days of modern wordprocessing, it just isn’t necessary. They get lost, they are often incorrectly drafted and in my experience, the in my practice, we banned solicitors from doing them and what we did is, we charged the client the same price but for a completely new will. It was a good deal.

If you have Power of Attorney over your father’s affairs, then the solicitor should be able to confirm exactly why your father visited. They will probably want site of the original document. Don’t be at all surprised the solicitors are awkward about saying why your father went to see them.

You say that he was incapacitated but you don’t say whether that was physically or mentally because obviously, if it’s mentally, then he cannot do another will in any event.

You cannot really challenge a new well until such time as your father passes away. There are then lots of ways of contesting it.

Wills and estate admin can be contested on various grounds

1
If a person doesn’t provide for dependents, children incl adopted children of all ages and a spouse (but not step children unless they have been treated as the deceased’s own children) in a will it can contested by making a claim under the THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975.

Details are here

http://www.rollingsons.co.uk/The-Inheritance-Provision-for-Family-and-Dependants-Act-1975.shtml

and here

http://www.disputed-will.co.uk/news/?p=1

2
Undue influence if it is thought that the person making the will had been “got at" when drafting the will.

3
Or if, when drafting the will the person lacked mental capacity/didn’t know what he/she was doing

4
Fraud

There are strict time limits for contesting will under 1 above of 6 months from death.

Claims under 2 or 3 above 12 months.

Claims under 4, no time limit.

http://www.probate.uk.com/how_long_contest_will.html

The
5

Promissory Estoppell. This is a technical legal doctrine not used very often. It says that if anyone has been promised something during the lifetime of a person and they relied on that promise to their detriment then they are entitled to have whatever was promised. The classic case is indeed the young man on the farm, who is told by the old man “don’t go off to seek your fortune son, but stick with me and work on the farm and I will leave it to you when I die,”.

So the young man doesn’t go off to seek his fortune and stays and works on the farm and it turns out that when the old man dies he leaves everything in his estate to the prize cow, Daisy or his new girlfriend, who is 30 years younger than he is.

In that case, the young man having given up a future (to his detriment) on the basis that one day (he was promised) the farm would be his and he believed it and relied on it, he can get a court order that the farm is transferred to him. Such claims are not cheap or quick to bring in do require a large burden of proof of the promise and reliance to detriment.

Anyone can get a copy of a will once it has been admitted to probate from HM probate registry, upon the payment of £6 pounds.

http://www.justice.gov.uk/courts/probate/copies-of-grants-wills

Anyone can also hold up the granting of probate by entering a caveat at the probate registry. At least, they will then find out if there is a will. The entering of a caveat will certainly wake up any executors. Some explanatory details are here;

http://www.anthonygold.co.uk/site/ang_articles/ang_articles_filing_a_caveat_first_step_in_contesting_a_will

If there is no will the estate is distributed under terms of the rules of intestacy

http://www.adviceguide.org.uk/england/relationships_e/relationships_death_and_wills_e/who_can_inherit_if_there_is_no_will___the_rules_of_intestacy.htm

A person can register a standing search at the probate registry, which must be renewed every six months and it will tell them if anyone applies for probate. When they do, they can then apply for a caveat.

If anyone is considering litigating the matter on any of the grounds above, they can make an application to court for pre-action disclosure of the will and can ask the court to award costs against the executor. If the application fails, costs can be awarded against the applicant.

I am glad to help.

Hopefully, I have answered your query in a way that is simple and easy to understand.

I would be more than happy to clarify anything else for you. In the meantime, thank you once again for using our services.

I am happy to answer any specific points arising from this.

Please be aware that my answer is based strictly upon the information you have given me.

If you still need any points clarifying, I will be happy to reply because the thread does not close. In fact, it remains open indefinitely.

I am always happy to answer any further questions you have on any new thread in which case, please start your question with, “ For FES only”.

You don’t need to do it on this thread, just a new thread. You have me exclusively on this one.

Thank you.

Best wishes.

FES

Customer: replied 12 days ago.
My father was mentally incapacitated due to a seizure onset by autoimmune encephalitis, he then spent time in brain rehab and was released 7 months later, POA was activated a month before he was released. He hasn't really had any contact for years from my sister and she would be unaware of the contents of his will (I have a copy in his files which is stating his estate will actually be divided very fairly), this will was drawn up in 2017 to replace previous one of 2012.
Expert:  F E Smith replied 12 days ago.

Thank you for the extra information.

From what you have said, he would not have mental capacity to do another will although a lot depends not only on whether he has been coerced by your sister but also whether the solicitor was aware of the possibility of your father being mentally incompetent at the time the will was drafted.