Contesting a will, capacity

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.

beauf

EmilyBClare wrote: »

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.

Assign the administration of the estate to the solicitor. Then you only have to deal with the solicitor not the brother.

I think money spent on a solicitor would be well spent.

Parents should be aware that leaving unequal split's of inheritance and property split between children leaves behind a huge headache.

Peregrinus

EmilyBClare wrote: »

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.

The question is how you disentangle yourself from this situation at minimum emotional and financial cost.

The answer is, if you're willing and your co-owner is also willing, simply give the land to the brother in occupation. There'll be a cost; if this is done co-operatively the cost can be minimised.

Sure, he may not appreciate it, but so what? Your goal here is not to be appreciated, but to put an end to a potentially toxic, draining situation. Don't be distracted from that goal.

Your other option, as you recognise yourself, is to disclaim your own interest in this land and leave the others with an interest in/claim to the land to slog it out between themselves. But, while you wouldn't be directly involved, that still leaves a toxic row unfolding in your immediate family, which could indirectly affect you. So that's a less good outcome.

I understand your grief for your father, and I am sincerely sorry. But this mess, it has to be said, is part of your father's making. He let your brother occupy and use the land for I think a long period of time, and then he bequeathed that land to you and your other brother. How did he think that would work out?

I imagine the answer is that he didn't think. But I can't imagine that he wiykd have wanted to cause you pain and additional grief, so I think deal with this land in whatever way will make you happiest.

Peregrinus

beauf wrote: »

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

He doesn't have to because he has refused to buy it. If he bought that bit of land with the brother in occupation of it, then he would obviously have to deal with the brother. His (wise) reluctance to deal with the brother is the reason that bit of land was excluded from the sale.

EmilyBClare

beauf wrote: »

Assign the administration of the estate to the solicitor. Then you only have to deal with the solicitor not the brother.

I think money spent on a solicitor would be well spent.

Parents should be aware that leaving unequal split's of inheritance and property split between children leaves behind a huge headache.

a massive headache!

beauf

Peregrinus wrote: »

He doesn't have to because he has refused to buy it. If he bought that bit of land with the brother in occupation of it, then he would obviously have to deal with the brother. His (wise) reluctance to deal with the brother is the reason that bit of land was excluded from the sale.

So the buyer is irrelevant really.

It just how to transfer ownership of the land to that brother. With the minimum of hassle. He won't want to pay tax on it, I think thats why he's going wants to disrupt everything. Or maybe he just wants to do that anyway.

I've a sibling a bit like that. Every contact with them is torture.

EmilyBClare

Peregrinus wrote: »

He doesn't have to because he has refused to buy it. If he bought that bit of land with the brother in occupation of it, then he would obviously have to deal with the brother. His (wise) reluctance to deal with the brother is the reason that bit of land was excluded from the sale.

It was a local neighbour that bought the land, he had been renting it from my father for year so he got first refusal. He took the land but didn't want to have to deal with the other brother and was happy to leave that piece of the folio off the sale.

EmilyBClare

Thanks you @peregrinus for such good advise.

The goal, as you said, is to disentangle myself from this situation at minimum emotional and financial cost.

I never thought that when Dad passed, land..money etc would become such a prize to the family.

EmilyBClare

Peregrinus wrote: »

The question is how you disentangle yourself from this situation at minimum emotional and financial cost.

The answer is, if you're willing and your co-owner is also willing, simply give the land to the brother in occupation. There'll be a cost; if this is done co-operatively the cost can be minimised.

Sure, he may not appreciate it, but so what? Your goal here is not to be appreciated, but to put an end to a potentially toxic, draining situation. Don't be distracted from that goal.

Your other option, as you recognise yourself, is to disclaim your own interest in this land and leave the others with an interest in/claim to the land to slog it out between themselves. But, while you wouldn't be directly involved, that still leaves a toxic row unfolding in your immediate family, which could indirectly affect you. So that's a less good outcome.

I understand your grief for your father, and I am sincerely sorry. But this mess, it has to be said, is part of your father's making. He let your brother occupy and use the land for I think a long period of time, and then he bequeathed that land to you and your other brother. How did he think that would work out?

I imagine the answer is that he didn't think. But I can't imagine that he wiykd have wanted to cause you pain and additional grief, so I think deal with this land in whatever way will make you happiest.

beauf wrote: »

So the buyer is irrelevant really.

It just how to transfer ownership of the land to that brother. With the minimum of hassle. He won't want to pay tax on it, I think thats why he's going wants to disrupt everything. Or maybe he just wants to do that anyway.

I've a sibling a bit like that. Every contact with them is torture.

Exactly, he wants to do it anyway - both him and his wife have this outlook on life as to whom they can annoy or upset next. I walked away years ago for sake of my health. I couldn't be around people like that.

beauf

People show the true colors. When it comes to money, it seems money is thicker than blood.

ohnonotgmail

EmilyBClare wrote: »

Exactly, he wants to do it anyway - both him and his wife have this outlook on life as to whom they can annoy or upset next. I walked away years ago for sake of my health. I couldn't be around people like that.

It might be easier from a personal point of view to just give him the land and be done with it. Like removing a plaster. Just rip it off and get it over and done with rather than dragging it out over a longer period.