Contesting a will, capacity

EmilyBClare

Hi Readers,

Looking for your opinions on my late fathers will. My father passed in 2019, my brother & I are the executors. Probate has passed since July 2019 but my older brother has decided he will now questions my fathers capacity as of the date of the said will (made in 2018). He has a solicitor in tow and has gone on a general fishing expedition seeking CA24 and other details of time when will was made. My father was of sound mind and left house, some land to myself and two other brothers. My older brother asked to be left out of the will. My father obliged. He was thus a residuary beneficiary of the will. Land was since sold to pay back a fair deal scheme and matters have been left in limbo since. Sale of the land revealed that my brother is sitting on a portion of land that belongs to my late fathers estate.

I suppose my question is can my brother do this? Go on general fishing expedition, should my fathers wished not be respected? Can my brother bring this to court. His motive has been to annoy other family members mainly. Our solicitor has been great but it is jut adding to the costs of drawing it all to a close.

I would closure on it for my father, I feel like I cant move on because of my brother.

Any advise greatly welcome.

EmilyB

Peregrinus

The costs of defending this challenge will come out of the estate. They come primarily out of the residue of the estate; only if the residue is entirely consumed by the costs of the defending this challenge will the specific legacies be reduced. As your brother is a residuary legatee, this means that in financial terms he may be cutting off his nose to spite his face. HIs solicitor will have pointed this out to him.

Which I think suggests one of two things:

First, your brother is not motivated by financial considerations at all; this is just a case of dysfunctional family relationships adversely impacting the sorting out of your father's estate (which is a common enough occurrence, I have to say). You hint in your OP that this may be what is going on.

Or, option B: your brother really thinks your father lacked mental competence at the time he made the will, and has evidence to support this view, and he expects to win, or at least is willing to take a chance on it.

As you have your own solicitor, I hesitate to offer advice. Assuming you are satisfied that your father was perfectly competent when he made the will, for what it's worth, my instinct would be (a) promptly give your brother the information he is asking for, but (b) tell him that you will be proceeding with the administration of the estate in accordance with the will without delay, and that if he has an objection to this he needs to institute court proceedings sooner rather than later.

Generic question, not to drag the thread off topic, but, assuming a will is made when the person is mentally competent/sound and has been witnessed by an impartial person (solicitor), is there really any chance of a child successfully contesting the will because they were excluded from it?

I can't see what argument would be put forward (unless, as Peregrinus says, the person legitimately believes the father wasn't of sound mind, but if a solicitor accepted the will at the time it was made i presume the child hasn't a leg to stand on anyway)?

Peregrinus

When I was in practice as a solicitor, one of the things we did when witnessing a will was to have a conversation immediately beforehand with the testator about the will, its effects, whether it reflected his wishes, etc. Immediately afterwards you'd make a note of that conversation and place it on the file.

The idea was that, if questions were later raised about the testator's competence, there's be a record of a conversation you had with him which showed that he understood the nature of a will and the particular provisions of his own will.

If somebody wants to object to a will on the grounds that the testator lacked competence, the onus is on them to show that. You'd [attempt to] show it by reference to medical examinations of, or medical opinions about, the testator at around the time the will was executed, or by evidence that the testator was manifesting seriously confused, irrational or deluded behaviour at around that time, inconsistent with the idea that he was capable of making a will. The fact that you don't like the provisions of his will may be your motive for challenging the will, but in general it's completely irrelevant to the question of whether the testator had the required mental competence. "If my father was in his right mind he would have left me an equal share of the estate!" is not an argument that will find much traction.

A child who has been excluded from their parent's will does have another course of action open to them. Under Succession Act 1965 s. 117, a child can apply to court arguing that their parent "has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise" and, if the court is satisfied about that, it can "order that such provision shall be made for the child out of the estate as the court thinks just". What is relevant here is not just what's in the will but what the parent did for the child while alive. So, for example, if I leave the 300 acre farm and house to my eldest son, having already set my middle son up with a garage and motor dealership which is now a thiving business and having paid for the younger son to go to college and take the bar, with the result that he is now a busy and prosperous SC, but I kept my daughter at home to care full-time for me and my wife in our declining years and left her nothing in the will, and she now has to leave the house because her brother is moving in with his family — if she brings an action under s.117 for a cut of the estate she stands a good chance of succeeding. And she doesn't have to argue that I lacked mental competence; just that I have failed in my moral duty to provide for her in accordance with my means.

Peregrinus

Peregrinus wrote: »

When I was in practice as a solicitor..

That's one of the best posts I've read on here in a long time! Very informative.


Could I ask you a quick question, seen as you're clued into this kind of thing, if a Father has, for argument sake, three sons, and leaves a will that leaves everything to one son and nothing to the other two.


How do the other two find out that the one has secured everything? Does the solicitor actually individually inform each person what they, and their siblings, inherit (or don't inherit, as the case may be)? Or does he just inform the one son who's getting the lot, and the other two figure it out based on them not getting anything at all?

Quantum Erasure

EmilyBClare wrote: »

. My older brother asked to be left out of the will. My father obliged. He was thus a residuary beneficiary of the will. Land was since sold to pay back a fair deal scheme and matters have been left in limbo since. Sale of the land revealed that my brother is sitting on a portion of land that belongs to my late fathers estate.

Did he build a house on land that wasnt signed over to him? Did he mean 'leave me the land the house is on, but otherwise leave me out of the will'?

Peregrinus

Deleted User wrote: »

. . . if a Father has, for argument sake, three sons, and leaves a will that leaves everything to one son and nothing to the other two.

How do the other two find out that the one has secured everything? Does the solicitor actually individually inform each person what they, and their siblings, inherit (or don't inherit, as the case may be)? Or does he just inform the one son who's getting the lot, and the other two figure it out based on them not getting anything at all?

The will will name an executor. It's the executor's job to apply to court for a grant of probate, and then to administer the estate - identify and take possession/control of all the property of the deceased, and distribute it to the people entitled under the will. Depending on the complexity of the work involved, he may or may not retain a solicitor to act for him in the administration of the estate.

The executor (or his solicitor) will need to contact everyone who has an entitlement, even if it's only to tell them that "Granny left you her picture of The Infant Samuel at Prayer. I'll bring it round on Tuesday."

He's under no obligation to contact people who have no entitlement, but people who expect to have, or hope they might have, an entitlement will usually contact him. If they do, he doesn't have to tell them any more than "Sorry, no. Gran left you nothing." He doesn't have to tell them who Gran did leave stuff to, or what she left to whom.

Of course, executors often do tell people this kind of thing, or they hear anyway - news travels fast in families. It used to be common for the will to be formally read aloud to the immediate family after the funeral. That was never required, and doesn't happen so much in practice nowadays, but word of what's in the will usually gets around pretty effectively. Plus, part of the process for getting a grant of probate from the court involves lodging a copy of the will in the Probate Office. Once that's been done, anyone who is interested can get a copy of the will from the Probate Office for a modest fee.

So, in the case you give, the two sons who have not been left the anything will probably approach the executor and say "Did Dad leave me anything?" The executor will either say "Sorrry, no." or "Sorry, no, he left the whole lot to Jim". If the executor doesn't tell them that Jim is the lucky winner they will probably find that out fairly quickly anyway, if necessary by getting a copy of the will from the probate office.

Peregrinus

Peregrinus wrote: »

The will will name an executor.

Again, extremely informative, Peregrinus! Has answered something I've wondered about for years but never actually knew about.


You're an absolute gent (or lady!) for that information. I appreciate it.

EmilyBClare

Quantum Erasure wrote: »

Did he build a house on land that wasnt signed over to him? Did he mean 'leave me the land the house is on, but otherwise leave me out of the will'?

Yes, part of his business on this land, which was left to my Brother and I.

EmilyBClare

Thanks for all the replies everyone, it just makes this all so much easier to understand.

My father was of full mind when making the will and like the previous post, his solicitor (whom knew him for over 25 years) did make notes etc on the details of his decisions. The fact that his instructions were accepted to begin with should surely be enough?

As by way of an update, the solicitor has sent my brother via email a letter giving him a deadline asking that if the matter is being persued that he must clearly set out his position.

I would be of the advise from @ perengrinus and proceed "with the administration of the estate in accordance with the will without delay, and that if he has an objection to this he needs to institute court proceedings sooner rather than later" but our solicitor seems to be treading on egg shells.

He also provided a copy of the CA24.

I can only go on my fathers solicitors advice, and by no way I mean to undermine him by writing here but other opinions always help. so thank you.

Peregrinus

Yeah, OK, your brother may have some kind of a claim here, not so much on the basis that your father's will is invalid, but that he has acquired rights to occupy and/or use part of your father's land, and that you and the other heirs get the land subject to his rights in it.

Obviously I don't know the facts of the case, on what basis or with what degree of formality your brother has been occupying/using the land up to now, what your father may have said to him about this before he died, what amount your brother may have investing by building on the land, etc, or what opportunities he may have foregone in reliance on an expectation that he could run his business on your father's land. But this is going to have to be sorted out and, if it's not sorted out by you and the other heirs talking to your brother, finding out what his situation is, findign out what he wants/needs and coming to some kind of agrement with him, then it may get sorted out in the courts, whcih will be slow, expensive and best avoided.

It's a separate matter from the administration of the estate. Nothing you say suggest that your brother has much chance of getting the will set aside on the basis of your father's mental state. But he may have other claims to the land that he could advance more strongly.

EmilyBClare

Thanks Perengrinus.

I doubt my brother even considered that he was on my dads land, it was only brought to light when it was sold to pay revenue. My father more than likely allowed him to do this and I have no issue with him keeping it if it came to that. It was a business that my father started and my brother continued.

I don't want to strain relations further.

Claw Hammer

The Section 117 application has to be made within 6 months of the grant of probate. There is quite a high bar for sound mind applications. Mediation should be considered.

BattleCorp

EmilyBClare wrote: »

Thanks Perengrinus.

I doubt my brother even considered that he was on my dads land, it was only brought to light when it was sold to pay revenue. My father more than likely allowed him to do this and I have no issue with him keeping it if it came to that. It was a business that my father started and my brother continued.

I don't want to strain relations further.

I take it that all your Dad's land wasn't sold and the parcel of land where your brother's business is located wasn't part of the sale of land? Is this correct?

EmilyBClare

this is correct, but he has been on the land for many years.

EmilyBClare

Claw Hammer wrote: »

The Section 117 application has to be made within 6 months of the grant of probate. There is quite a high bar for sound mind applications. Mediation should be considered.

Six months have long passed, and no application made.

What does this mean?

Claw Hammer

EmilyBClare wrote: »

Six months have long passed, and no application made.

What does this mean?

He can't bring a section 117 application. Undue influence or unsound mind is the only way he can cause legal trouble.

EmilyBClare

Thanks everyone for the words.

Solicitor gave him a deadline and now my brothers solicitor has come back stating that due to latest lockdown he cannot meet with there client (my brother) and that they had also arranged to meet with counsel which is not possible.

He is claiming he has been on the land since 2002 also and my dads claim to it has been long since extinguished.

I am exhausted by him.

In short - what is the quickest way to make him go away and let the rest of the family move on.

coylemj

Peregrinus wrote: »

The executor (or his solicitor) will need to contact everyone who has an entitlement ......

He's under no obligation to contact people who have no entitlement, but people who expect to have, or hope they might have, an entitlement will usually contact him. If they do, he doesn't have to tell them any more than "Sorry, no. Gran left you nothing." He doesn't have to tell them who Gran did leave stuff to, or what she left to whom.

+1 I was the executor of the estate of an aunt several years ago. She was a widow with no children so the prospective beneficiaries of her will consisted of a wide circle of nieces and nephews. Two of them considered themselves in the frame for a bequest and I knew they were anxiously waiting for word from me about their windfall. Trouble was, they got nothing.

I waited until we assembled for the burial of the ashes a few weeks after the funeral. I knew I had no obligation to inform them but I made several copies of the will and put them into individual sealed envelopes. At the end of the service in the cemetery, I distributed the envelopes and discreetly told those two cousins of mine that Aunt Margaret had left her property and money to A, B and C (which did not include them). They put the (unopened) envelopes into their pockets and I never heard from them again.

Peregrinus

Your brother has been on the land for many years (post #15) and you have no issue with him keeping it (post #13) but you're asking us what's the quickest way to make him go away (post #18)?

What outcome do you want here? Is your brother to have the land that he currently occupies, or is he to vacate it?

EmilyBClare

Peregrinus wrote: »

Your brother has been on the land for many years (post #15) and you have no issue with him keeping it (post #13) but you're asking us what's the quickest way to make him go away (post #18)?

What outcome do you want here? Is your brother to have the land that he currently occupies, or is he to vacate it?

Honestly, I would leave him on the land and let him retain it.

CoBo55

Was dementia mentioned on the death cert? It was on my Fathers as a contributary cause of death because of this an affadavid was required from his doctor to say he hadn't dementia at the time of writing the will (19 years ago at the time, luckily enough). Mabye I missed it but what does your brother actually want?

ohnonotgmail

EmilyBClare wrote: »

Honestly, I would leave him on the land and let him retain it.

so why don't you?

EmilyBClare

CoBo55 wrote: »

Was dementia mentioned on the death cert? It was on my Fathers as a contributary cause of death because of this an affadavid was required from his doctor to say he hadn't dementia at the time of writing the will (19 years ago at the time, luckily enough). Mabye I missed it but what does your brother actually want?

No, my Father Parkinson’s Disease.

I think his motive is to cause trouble, deepen a family rift.

EmilyBClare

ohnonotgmail wrote: »

so why don't you?

Can I?

The will hasn’t been administered.

CoBo55

EmilyBClare wrote: »

No, my Father Parkinson’s Disease.

I think his motive is to cause trouble, deepen a family rift.

Did your solicitor get an affidavit from his doctor? With that you can press on and execute the will. My family of charmers were making grumblings as well, I just ignored them and pressed on with the job, they did nothing in the end.

Peregrinus

The land your brother occupies, and feels he should have, and you are happy for him to have it - who gets it under the will?

EmilyBClare

Peregrinus wrote: »

The land your brother occupies, and feels he should have, and you are happy for him to have it - who gets it under the will?

It was left between one of my brothers and I.

EmilyBClare

CoBo55 wrote: »

Did your solicitor get an affidavit from his doctor? With that you can press on and execute the will. My family of charmers were making grumblings as well, I just ignored them and pressed on with the job, they did nothing in the end.

No affidavit from Doctor, Dad was in good health.

CoBo55

EmilyBClare wrote: »

No affidavit from Doctor, Dad was in good health.

Does it say Parkinsons disease on you Father's death cert?

EmilyBClare

CoBo55 wrote: »

Does it say Parkinsons disease on you Father's death cert?

Yes, in brief, cause of death was due to complications from Parkinson’s.

CoBo55

EmilyBClare wrote: »

Yes, in brief, cause of death was due to complications from Parkinson’s.

First thing my solicitor said to me when he saw dementia on Dad's cert was he'd contact his doctor for an affidavit to say he had no diagnosis of dementia at the time the will was written. I'm surprised your's hasn't said the same, maybe that's the tack your brother is using. I'd ask your solicitor in the morning.

EmilyBClare

CoBo55 wrote: »

First thing my solicitor said to me when he saw dementia on Dad's cert was he'd contact his doctor for an affidavit to say he had no diagnosis of dementia at the time the will was written. I'm surprised your's hasn't said the same, maybe that's the tack your brother is using. I'd ask your solicitor in the morning.

I will certainly ask. Dad knew his solicitor a long time. I assumed if the solicitor had any doubts he would have acted on it!?

nuac

Mod
At least in its early stages Parkinsons' does not amount to dementia




7

thomasdylan

People with dementia can still have the capacity to make a will.

CoBo55

nuac wrote: »

Mod
At least in its early stages Parkinsons' does not amount to dementia




7

Jesus what's wrong with people on this site? I never said that the op's father had dementia. My suggestion was that the op ask the solicitor to get an affidavit from her fathers doctor stating that he didn't have any medical impairment dementia or otherwise at the time the will was written. That would stop her brother pursuing that avenue straight away.

CoBo55

thomasdylan wrote: »

People with dementia can still have the capacity to make a will.

Mmmm, You're in a grey area there. It would be a very brave solicitor/witness combo who'd sign their names to that one, they'd be leaving themselves wide open to someone like the op's brother.

ohnonotgmail

CoBo55 wrote: »

Mmmm, You're in a grey area there. It would be a very brave solicitor/witness combo who'd sign their names to that one, they'd be leaving themselves wide open to someone like the op's brother.

My mother created a will and an EPOA after her diagnosis. Her gerentologist had to confirm that she had the capacity to do so. there is no grey area.

Peregrinus

ohnonotgmail wrote: »

My mother created a will and an EPOA after her diagnosis. Her gerentologist had to confirm that she had the capacity to do so. there is no grey area.

An affirmative statement by a doctor that you have the necessary medical capacity is a statutory requirement for making an enduring power of attorney.

But not for making a will. In the case of a will, the onus is on people who want to challenge the will to show that you didn't have the necessary capacity, not on you or your heirs to show that you did.

Obviously, if you make both at the same time, the medical statement in relation to the power of attorney will also be evidence that you were competent to make a will, should the will later be challenged.

beauf

I'm a bit confused. Is the land the brother on

...going to Fair-deal,
...being sold to pay Revenue
...left to be distributed between the OP and their brother (not the brother on the land).

Did everyone just forget the land the brother is on, was owned by the estate.

Treppen

beauf wrote: »

I'm a bit confused. Is the land the brother on

...going to Fair-deal,
...being sold to pay Revenue
...left to be distributed between the OP and their brother (not the brother on the land).

Did everyone just forget the land the brother is on, was owned by the estate.

Could be more land than just the land the brother is on, and it's all the one plot.... Going towards fair-deal !

Peregrinus

Peregrinus wrote: »

The land your brother occupies, and feels he should have, and you are happy for him to have it - who gets it under the will?

EmilyBClare wrote: »

It was left between one of my brothers and I.

OK. If brother A is occupying, for the purposes of his business, part of the land left to you and Brother B, and if you are happy for Brother A to have the bit of land that he occupies, and Brother B is also happy about that — you and Brother B should approach Brother A, tell him that you are happy to transfer the bit of land to him if he wants it, provided he does not otherwise challenge the will or obstruct the adminsitration of the estate, and suggest that the three of you should talk to the solicitor about how this can best be done with minimal tax and other costs.

There may be some modest cost involved but it will certainly be far, far less than the cost of a row over the will that holds up the administration of the estate.

EmilyBClare

beauf wrote: »

I'm a bit confused. Is the land the brother on

...going to Fair-deal,
...being sold to pay Revenue
...left to be distributed between the OP and their brother (not the brother on the land).

Did everyone just forget the land the brother is on, was owned by the estate.

Correct.

Land was sold to pay fair deal, however the portion that Brother is sitting on was excluded from sale. The buyer said after it was discovered that he rather not deal with Brother on it. So it is now left to myself and other brother (not brother on land)

Well what does your other brother think?
If nobody has any objection to transfering this piece of land, surely this could be quite straightforward, unless your brother wants to be awkward.

beauf

EmilyBClare wrote: »

Correct.

Land was sold to pay fair deal, however the portion that Brother is sitting on was excluded from sale. The buyer said after it was discovered that he rather not deal with Brother on it. So it is now left to myself and other brother (not brother on land)

Why does the buyer have to deal with the brother if he's not buying that bit of the land and the brother didn't legally own it anyway.

ohnonotgmail

Peregrinus wrote: »

An affirmative statement by a doctor that you have the necessary medical capacity is a statutory requirement for making an enduring power of attorney.

But not for making a will. In the case of a will, the onus is on people who want to challenge the will to show that you didn't have the necessary capacity, not on you or your heirs to show that you did.

Obviously, if you make both at the same time, the medical statement in relation to the power of attorney will also be evidence that you were competent to make a will, should the will later be challenged.

I was responding to the point that it was a grey area and that only a brave solicitor would do it. As you have confirmed it is not a grey area at all.

beauf

[Deleted User] wrote: »

Well what does your other brother think?
If nobody has any objection to transfering this piece of land, surely this could be quite straightforward, unless your brother wants to be awkward.

I don't get the issue either.

The only thing I can think of is that the brother on the land wants his claim recognised before the estate is distributed. He wants it in the will. So that it never transfers to the siblings and then to him. That in some way he would be beholden to them for them giving him the land. Or he simply doesn't trust them to do that.

EmilyBClare

Deleted User wrote: »

Well what does your other brother think?
If nobody has any objection to transfering this piece of land, surely this could be quite straightforward, unless your brother wants to be awkward.

I don't think there would be any issue in either of us agreeing to transfer the land over, we don't want it but why should we?

Genuine question.

If something is handed to someone for nothing, it is never appreciated.

Also you must appreciated how bad a character my brother has, he is unfortunately a very spiteful person and I feel like making any bargin with him would not be worth it.

He is a toxic person, I have tried to cut him out of my life for the sake of my mental health and it has worked, for a time, but now this constant back & forth has me down. My dad was a great friend to me, we were very close and I am still coming to terms with his loss.

I have even considered walking away from the will and leaving the inheritance to my other brothers.

The hassle isn't worth it.

beauf

Peregrinus wrote: »

OK. If brother A is occupying, for the purposes of his business, part of the land left to you and Brother B, and if you are happy for Brother A to have the bit of land that he occupies, and Brother B is also happy about that — you and Brother B should approach Brother A, tell him that you are happy to transfer the bit of land to him if he wants it, provided he does not otherwise challenge the will or obstruct the adminsitration of the estate, and suggest that the three of you should talk to the solicitor about how this can best be done with minimal tax and other costs.

There may be some modest cost involved but it will certainly be far, far less than the cost of a row over the will that holds up the administration of the estate.

This seems to make the most sense. But whereas there would likely be no tax inheriting it directly from a parent, there may be recieving it as gift from a sibling. Maybe that's the angle. But I assume the two siblings refusing to inherit the land he's on is likely to be complicated. That making an agreement to transfer the land to the brother after the estate is distributed would be easier. As Peregrinus suggests.

I'm open to correction...

Peregrinus

beauf wrote: »

Why does the buyer have to deal with the brother if he's not buying that bit of the land and the brother didn't legally own it anyway.

Other way around; reason that bit of land was excluded from the sale is because buyer doesn't want to deal with brother who is in occupation of it.

beauf

Peregrinus wrote: »

Other way around; reason that bit of land was excluded from the sale is because buyer doesn't want to deal with brother who is in occupation of it.

Ah make sense. But he doesn't have to.