contested will

willembanna

Hi,

I'm asking this for a friend. I'm not looking for legal advice but wondering if this is the current law.

His mother recently died and the will made about a year ago leaves her house to his youngest brother. She was in her 80's. There are 9 of them in the family and he supported the leaving of her house to his youngest brother. However the others did not know about the changing of the will leaving everything to the youngest and want the house sold and proceeds divided up instead.

The question I'm asking is, if they do successfully contest the will claiming she wasn't of sound mind etc, then does the will that she made 20 yeras ago automatically stand? i.e the previous will.

Thanks

Fol20

im not lawyer but i dont think it is right for the will to be contested here as it was her decision to give all of her assets to the youngest brother,not the rest of the family.If i died tomorrow and my will was contested and changed,i would be very annoyed.

The only reason i would contest this will is if the younger brother in some way persuaded her to make a new will with him being the only beneficiary

willembanna

Fol20 wrote: »

im not lawyer but i dont think it is right for the will to be contested here as it was her decision to give all of her assets to the youngest brother,not the rest of the family.If i died tomorrow and my will was contested and changed,i would be very annoyed.

The only reason i would contest this will is if the younger brother in some way persuaded her to make a new will with him being the only beneficiary

Unfortunately the whole thing is not nearly as straight forward as my first post sugested as I merely wanted to establish what the law is if the will was successfully contested.

My friend, one of her elder sons, took great care of his mother in her latter years. He viewed some of his siblings as being greedy and under handed and rightfully guessed that they might try to grab what they could when she passed away. He would have influenced her in getting her to change her will leaving the family home to his youngest brother. There was the provision made that the youngest could not sell the house as my friend wanted the house kept in the family no matter who got it. A provision was also made that if anything ever happened to the youngest brother then it was to be sold to a sibling going to the highest bidder amongst them but to no one outside the immediate family.

Now the most extraordinary part of this affair is as follows, the youngest brother along with the others also wants to contest this will despite him benefiting the most. He wants to contest it as he wishes to sell the house saying that it is "of no use" to him because he can't sell it. He seems blind to the fact that he could lose out massively to his greedy siblings if the will is contested successfully.

My friends wish is for the house to stay in the family no matter what and that his mother's wishes be honoured. I should also add that this will was made 5 yeras ago and not 1 year ago as I mistakenly put in my first post.

Jo King

The conduct of your friend seems to be deplorable. He influenced his mother to maker her will in a particular way. The will could be challenged on the basis of undue influence. There could also be a Section 117 challenge by some of the siblings.
Another possibility is that the youngest son could renounce his inheritance and cause an intestacy. That would result in an even split amongst all of the siblings. Unless your friend buys the house himself he cannot prevent it being sold out of the family.
Your friend and his siblings should reach agreement amongst themselves and behave like adults otherwise they could well have a bitter and expensive series of court outings.

dats_right

A prominent Senior Counsel who specialises in this area once told me that: "unless a gun was put to the testator's head [he meant literally too!], then you will not succeed with an undue influence action". Indeed I have often asked other barristers who specialise in this area whether they would agree with this summary of the law, and with very little qualification, all more or less agree with that statement. Accordingly, a little coercing and encouragement exerted on a testator to change their Will would therefore not constitute undue influence. This quite often comes as a surprise to aggrieved potential beneficiaries; that just because mammy or daddy was old and their brother Mick drove mammy to the solicitors to make the will, that this is not sufficient to challenge the terms of the Will. One must remember that there is a very strong presumption in favour of freedom of testamentary disposition.

Once again, old age and physical infirmity do not make a testator incapable of drafting a valid Will, particularly so when drafted by a solicitor. Because the solicitor is under a legal obligation to satisfy himself/herself that the said testator is of sound and disposing mind at the time of executing the Will.

Children of a deceased have absolutely no automatic rights to anything from a deceased parent. However, they may have a claim if there has been a positive failure by the parent in their moral duty to provide, in accordance with their means, for a child or children of that testator i.e. a Section 117 claim. No two s117 cases are the same and full and detailed advice should be sought from a solicitor and probably counsel too as to whether there may be a valid and stateable claim in any particular set of circumstances.

willembanna

Jo King wrote: »

The conduct of your friend seems to be deplorable. He influenced his mother to maker her will in a particular way.

To be honest this a little off topic as I just wanted advice on what the law is and I didn't want to get into an argument about my friends actions, but I fail to see how his actions are deplorable and I feel compelled to defend him without wanting to take away from the original reason for posting in the first place which was an inquiry about the law.

(1) My friend gains absolutely nothing from this. He does not want the house or anything else. He wants it to go to his youngest brother as he lived with his mother right up to the end.

(2) The level of influence he had was as follows, he pointed out to her quite correctly that his youngest brother was always there for her and had always stayed with her and that the others rarely bothered with her. No gun to her head or other coercion involved. It was a straight forward conversation 5 years ago.

(3) A number of his other siblings tried to put this woman in a home. She had begged him a number of times in the past to never let her end up in a home. The others were essentially too busy with their own lives to look after her amongst themselves when she got more seriously ill. At one point they even succeeded until he found out and he quickly took her out and back to her home. His youngest brother would have been over ruled by the other members of the family in this matter.

willembanna

Thanks everyone for the helpful respones so far I might add