Contesting a will, capacity

EmilyBClare

SusanC10 wrote: »

Is there any chance that your brother thought that this land which has both his house and business had already been transferred to him ? And that is the context in which he said that he did not wish to inherit from your father ? And that your brother only found out after your father died that this was not the case ?

Possibly, but it is a case of his house and business were within a boundary, and then you park a trailer over by the hedge, it sits for about a year and then you say ya know what I must move that hedge out of the way of the trailer so I can get around it..and thus your boundary has moved..there is what happened, but on a larger scale.

EmilyBClare

BattleCorp wrote: »

How would one go about arguing lack of capacity when the willmaker gave the person exactly what they asked for which was to be left out of the will?

Unless they change their story and say they never asked to be left out of the will.

if you knew the character involved, you might understand.

SusanC10

EmilyBClare wrote: »

Possibly, but it is a case of his house and business were within a boundary, and then you park a trailer over by the hedge, it sits for about a year and then you say ya know what I must move that hedge out of the way of the trailer so I can get around it..and thus your boundary has moved..there is what happened, but on a larger scale.

But, was the land within the original boundary transferred or not ?
If the land within the original boundary was not transferred - that's one issue. The moving of the boundary if the land within the boundary had already been transferred is another issue.

EmilyBClare

SusanC10 wrote: »

But, was the land within the original boundary transferred or not ?
If the land within the original boundary was not transferred - that's one issue. The moving of the boundary if the land within the boundary had already been transferred is another issue.

Original boundary was transferred, in my brothers name etc but boundary moved over time (6 yrs or so) and now its that residual that belongs to the estate.

Squatman

iwould suggest, although no legal experience, that you have a face to face conversation with your brother and find out what exactly it is that would make him happy. Leave your ego at the door and bend over backwards to facilitate him. Crunch numbers if you must, and if his share exceeds the average of the others willed, then push back. If you don't find a middle ground, then you will all lose out.

there are already 2 legal eagles commenting on this chain and contradicting each other, with no vested interest. add in a vested interest and you will by paying their mortgages.

just my 2 cents.

beauf

EmilyBClare wrote: »

Original boundary was transferred, in my brothers name etc but boundary moved over time (6 yrs or so) and now its that residual that belongs to the estate.

Is that residual any part of the fair deal. Or is that seperate block of land.

beauf

Squatman wrote: »

iwould suggest, although no legal experience, that you have a face to face conversation with your brother and find out what exactly it is that would make him happy. ....

That would only work if the person is reasonable. If they are unreasonable it might better to keep those conversions formal and recorded.

notsoyoungwan

Peregrinus wrote: »

Fair point. Perhaps what I should have said is that the capacity assessement for the EPOA will be useful evidence if it comes to making a case that the individual also had the capacity to make a will. If nothing else, it means there will be a qualified medical professional who did examine the individual at the time and who will have notes of the examation, and who may be able now to express an opinion as to testamentary capcacity.

Good luck getting any doctor with a shred of cop on to express an opinion on testamentary capacity when they haven’t specifically assessed that and the will is being contested!! Most would be far too astute to be led down that road. Or at least, they should be too astute for that.

Squatman

beauf wrote: »

That would only work if the person is reasonable. If they are unreasonable it might better to keep those conversions formal and recorded.

wont make much odds either way.

either 1
he is reasonable and discloses his demands, in which case, its back to solicitors

or 2
he is unreasonable and its back to solicitors.

in my opinion, he wants his story heard, and the platform he is using is through solicitors. if anyone feels their not being considered or taken advantage of the will react. in this case, the brother thinks, if im not getting anything, no-one is.
if approached like - what would you like from this deal, he may change his ways

EmilyBClare

beauf wrote: »

Is that residual any part of the fair deal. Or is that seperate block of land.

Well , it could have been sold for more money, but wasn't. Purchaser wasn't prepared to deal with brother. so it was left out.

EmilyBClare

Squatman wrote: »

wont make much odds either way.

either 1
he is reasonable and discloses his demands, in which case, its back to solicitors

or 2
he is unreasonable and its back to solicitors.

in my opinion, he wants his story heard, and the platform he is using is through solicitors. if anyone feels their not being considered or taken advantage of the will react. in this case, the brother thinks, if im not getting anything, no-one is.
if approached like - what would you like from this deal, he may change his ways

I think you hit the nail on the head here, wants his story to be told perhaps, but we all know his story - he is trying to rewrite it now after its gone to print.

beauf

I don't think he cares about his story. He just wants to be difficult. Why? because that his nature.

CoBo55

notsoyoungwan wrote: »

Good luck getting any doctor with a shred of cop on to express an opinion on testamentary capacity when they haven’t specifically assessed that and the will is being contested!! Most would be far too astute to be led down that road. Or at least, they should be too astute for that.

That wasn't how it worked in my case. The doctor just signs the affidavit to say that at the time Mr X made his will there's nothing on my records to indicate he had dementia, I have been his doctor from "date A" to the time of his death.

CoBo55

Squatman wrote: »

iwould suggest, although no legal experience, that you have a face to face conversation with your brother and find out what exactly it is that would make him happy. Leave your ego at the door and bend over backwards to facilitate him. Crunch numbers if you must, and if his share exceeds the average of the others willed, then push back. If you don't find a middle ground, then you will all lose out.

there are already 2 legal eagles commenting on this chain and contradicting each other, with no vested interest. add in a vested interest and you will by paying their mortgages.

just my 2 cents.

Sorry but there's absolutely no way the op should do that. She didn't do anything wrong here, herself and her other brother and the solicitor are trying to execute a will here and that's what they should remain focused on, nothing else.

notsoyoungwan

CoBo55 wrote: »

That wasn't how it worked in my case. The doctor just signs the affidavit to say that at the time Mr X made his will there's nothing on my records to indicate he had dementia, I have been his doctor from "date A" to the time of his death.

That’s not what I’m talking about though. I’m talking about a scenario where someone has dementia, and had been assessed to have the capacity to set up EPOA, and did that the same day as writing a will. another poster said that a doctor could testify that the fact the person had capacity to do EPOA indicated they’d have had capacity to write a will, and I was pointing out that 1.they’re two separate issues, one more complex than the other and that someone may have capacity to do one but not the second and 2. No doctor worth their salt is going to testify as to someone’s testamentary capacity when they didn’t specifically assess that and the will is being contested.

In your case, the doctor didn’t comment on capacity, they just said that he didn’t have dementia, based on his records. That’s a factual statement, not a retrospective assessment of his capacity.

As a general principle, there is a presumption in law that someone has capacity, unless it’s proven otherwise. But I have been asked more than once to give an opinion on capacity when I never assessed it, and the person has since died- I always refuse. If I’ve assessed someone, gotten all the relevant info, made a decision, I’ll have contemporaneous notes with verbatim quotes, and then yeah, I’m happy to defend my opinion and I will stand over it in court. But ask me to give an opinion on something that I didn’t specifically assess? Not a chance!

Wilberto

EmilyBClare wrote: »

Original boundary was transferred, in my brothers name etc but boundary moved over time (6 yrs or so) and now its that residual that belongs to the estate.

In that case, could you just get a City/Council Engineer/Conveyancer or whatever to physically map out the boundary? Surely the land that was initially transferred would have been recorded in the Land Registry. Seems like it could solve that boundary issue.

No doubt someone will be along to debunk that suggestion though. :pac:

I hope everything gets resolved though. Leaving a will is supposed to make things so much easier but all to often it just ends up making things more complicated.

beauf

I get the impression that the brother can delay things but is very unlikely to be able change it.

But the law sometimes it's an ass. That's the worry.

CoBo55

Wilberto wrote: »

In that case, could you just get a City/Council Engineer/Conveyancer or whatever to physically map out the boundary? Surely the land that was initially transferred would have been recorded in the Land Registry. Seems like it could solve that boundary issue.

No doubt someone will be along to debunk that suggestion though. :pac:

I hope everything gets resolved though. Leaving a will is supposed to make things so much easier but all to often it just ends up making things more complicated.

Exactly you're spot on there, once the remaining land transfers to the new owner(s) they can re-establish the correct boundaries. Brother won't be happy but that's life, move over boyo there's a new Sheriff in town.

Claw Hammer

CoBo55 wrote: »

Exactly you're spot on there, once the remaining land transfers to the new owner(s) they can re-establish the correct boundaries. Brother won't be happy but that's life, move over boyo there's a new Sheriff in town.

Whoever buys the land will have the brother for a neighbour. Not may people willingly go into a situation where there are going to be legal battles. Land registry boundaries are not conclusive and as the purchaser came on the scene when the brother was already in possession of the land and his only witnesses as to the true boundary are the siblings of the squatter it could be a very long, uncertain and expensive legal battle to get the brother out of that portion of the land.

CoBo55

Claw Hammer wrote: »

Whoever buys the land will have the brother for a neighbour. Not may people willingly go into a situation where there are going to be legal battles. Land registry boundaries are not conclusive and as the purchaser came on the scene when the brother was already in possession of the land and his only witnesses as to the true boundary are the siblings of the squatter it could be a very long, uncertain and expensive legal battle to get the brother out of that portion of the land.

That'll be the new buyers decision to make, no matter what happens regarding land the brothers days of suiting himself are numbered. I think it's time the op and her brother and the solicitor started standing up to this fcuker. Sometimes the universal language needs to be employed... Not very professional I know but sometimes enough is enough...

Claw Hammer

CoBo55 wrote: »

That'll be the new buyers decision to make,

Very few people would become a buyer in such circumstances.

Treppen

Be careful talking to your brother. If you reveal what you are prepared to relinquish he could take that as a starting point and seek more. You could end up annoying your other brother too if you say the wrong thing.

Squatman

CoBo55 wrote: »

Sorry but there's absolutely no way the op should do that. She didn't do anything wrong here, herself and her other brother and the solicitor are trying to execute a will here and that's what they should remain focused on, nothing else.

its their objective. but the solicitor doesn't give a ramblers damn if it ever gets resolved. They will still send in their invoice at every opportunity. a small bit of something is better than a whole lot of nothing.
there are very few people who will be a total d1ck, when met with courtesy, consideration, friendliness, compassion, and a willingness to engage. IMO. this isnt a question of right and wrong. its a direction. you are at point a, and you want to get to point b, the quickest way, following the path of least resistance, with the most money left over.

EmilyBClare

CoBo55 wrote: »

That'll be the new buyers decision to make, no matter what happens regarding land the brothers days of suiting himself are numbered. I think it's time the op and her brother and the solicitor started standing up to this fcuker. Sometimes the universal language needs to be employed... Not very professional I know but sometimes enough is enough...

You have me motivated now to stick with this...

I can speak his language too when I want to but I just don't want to go there, going to his level, for me,would make me as bad him. My brother lacks decorum.

My solicitor is also a gent too, unfortunately for us.

EmilyBClare

Squatman wrote: »

its their objective. but the solicitor doesn't give a ramblers damn if it ever gets resolved. They will still send in their invoice at every opportunity. a small bit of something is better than a whole lot of nothing.
there are very few people who will be a total d1ck, when met with courtesy, consideration, friendliness, compassion, and a willingness to engage. IMO. this isnt a question of right and wrong. its a direction. you are at point a, and you want to get to point b, the quickest way, following the path of least resistance, with the most money left over.

You obviously haven't met the likes of my sibling!!

CoBo55

EmilyBClare wrote: »

You obviously haven't met the likes of my sibling!!

He sounds very similar to mine.
Like yourselves the solicitor that my father chose is an absolute gentleman, he's part of a well respected company and charged a fixed price that he told me from the outset. Stick to your guns but under no circumstances engage with that **** of a brother.
When the land becomes yours, re-establish the correct boundary immediately.
Remember one thing, your father chose you and your brother to execute his wishes, don't let your positions be undermined by him(the other fella).

CoBo55

Squatman wrote: »

its their objective. but the solicitor doesn't give a ramblers damn if it ever gets resolved. They will still send in their invoice at every opportunity. a small bit of something is better than a whole lot of nothing.
there are very few people who will be a total d1ck, when met with courtesy, consideration, friendliness, compassion, and a willingness to engage. IMO. this isnt a question of right and wrong. its a direction. you are at point a, and you want to get to point b, the quickest way, following the path of least resistance, with the most money left over.

According to the op her solicitor doesn't seem to be that type of greedy person, luckily the one my father chose was a very decent guy too. It was a fixed rate and that's what was charged to the estate.

Squatman

CoBo55 wrote: »

According to the op her solicitor doesn't seem to be that type of greedy person, luckily the one my father chose was a very decent guy too. It was a fixed rate and that's what was charged to the estate.

May well be. i was making generalisations. but my sentiment is really, that the brother will change his tune when it starts impacting his pocket.
worst case scenario, it could end up like the 2 bachelors in bonniconlon (or whereever in Mayo) where there has been grudges for years, ending up in more and more money lost, and years of life wasted.


these boyos. and for what its worth, the lads recording are as bad or worse than the fellas breaking the glass

https://www.youtube.com/watch?v=zMxbkDfpzF4

spaceHopper

Get you solicitor to write back to his saying, the world has resorted to technology to allow clients to instruct their legal council. Either enforce the deadline given, or give him an new deadline to respond but inforce it this time

nuac

Squatman wrote: »

May well be. i was making generalisations. but my sentiment is really, that the brother will change his tune when it starts impacting his pocket.
worst case scenario, it could end up like the 2 bachelors in bonniconlon (or whereever in Mayo) where there has been grudges for years, ending up in more and more money lost, and years of life wasted.


these boyos. and for what its worth, the lads recording are as bad or worse than the fellas breaking the glass

https://www.youtube.com/watch?v=zMxbkDfpzF4

Makes me proud to be a mayo man - not

CoBo55

spaceHopper wrote: »

Get you solicitor to write back to his saying, the world has resorted to technology to allow clients to instruct their legal council. Either enforce the deadline given, or give him an new deadline to respond but inforce it this time

Exactly, the people her father left in charge need to start taking charge. This time last year I was going through crap like this, I feel your distress op.