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Challenging a will - worth the hassle, what are the chances of success?

(21 Posts)
Betternc4this Fri 17-May-13 14:56:05

Background, my elderly parents originally left everything to our late brother as he lived with them. They also put his name on the house deeds (joint owners) so he wouldn't be left homeless in the event of them predeceasing him as you would normally expect. Also he looked after them and paid towards the upkeep of the house.

So fair enough so far l felt personaly though my younger sis was very unhappy about 'him getting everything' etc etc. But sadly he predeceased them both and parents original will then left everything between my sister and I.
But then my younger sister took over our elderly parents care, gave up work to do so - her choice - and dealt with everything to do with our parents for the next four years up to today. I still visited them etc
Our mother passed away early this year and dad is now in a home as Dsis didn't think dad could live on his own safely even with her help.
I have found out now on enquiring what happened to mums belongings/money etc (they didn't have much of great value or savings but still) only to be told by Dsis that everything now belongs technically to dad so she is not in a position as executor to them both to distribute anything out until mum and dad are both passed and all debts etc paid.

At this point l realised a new will must have been made as I was 2nd named executor of original one if our DBro predeceased me . I asked her had they made a new will and she admitted they had - a few years ago in order to update because of their sons/main beneficiaries death.
She said their solicitor had written to them suggesting they do this after our brothers death.
But they have apparently changed it to favour my younger sister only and l now get nothing when dad dies.

So what do you all think? My sister argues that this is an exact copy of their first will - again leaving everything to the eldest and the one who was caring for them and the other siblings or sibling(me) as it is now only get anything if main beneficiary/she predeceases me. So she has simply replaced our DlateBro in the pecking order so to speak.

I cant help but wonder if she has taken advantage of being in close constant contact with them and cajoled them or emotionally blackmailed them to this conclusion tbh.
Dad now has dementia so no hope at all of asking him to change his will if of course he wanted to or hadnt realised l wouldnt get anything.

We are talking in the region of £40k down to about £7k that l would have got under the original will (half their house value basically after all outgoings etc). It depends on how long dad lives in the home basically and therefore how much of the remaining estate will go in fees.

So is it worth my while or not to pursue this for this amount of money.
My parents were very fair people and l cant believe they would just leave me with nothing. I appreciate however my sis should get more than me after looking after them all these years.

familylawyerlouise Fri 17-May-13 16:54:31

There are very limited grounds to challenge a will or an inheritance. As an adult child, you can generally only launch a challenge to an estate if you were being maintained by the deceased at the time of death. Wills isn't my area of expertise but from what you've said I'm not sure you have sufficient grounds.

Betternc4this Fri 17-May-13 17:17:10

No l didn't think so but thanks very much anyway. Thing is most of the proceeds of their house (they have very little in actual savings) could well end up going to dads care home depending on how long my father is in residential care rather than nursing care and other factors so it could well end up being a small amount and therefore definitely not worth pursuing.
But if at the point our dad either passes away or is re-assessed as requiring continuing NHS care, there is still a fair amount of their estate left then l would have considered pursuing it. Just not sure what grounds l could do this on though as accusing my sis of coercion or whatever is quite a serious matter obviously and a solicitor briefly spoke to told me as my parents 'had form' for leaving everything to the eldest and main carer, it would not be inconceivable that they would have knowingly and willingly done this again.
Ahh well, l suppose l will just have to rely on her goodwill, though l think l may have already pre-emptied that one as we've 'had words'.

YoniOneWayOfLife Fri 17-May-13 17:36:09

Having been through this with my parent challenging my grandparents wills - I'd just walk. It could cost thousands, it will eat away at you and destroy the relationship with your sister - and that's if you win.

My father was consumed by this rage for years, it dominated every conversation he ever had with anyone - the money didn't matter in the end but left me with a 5K legal bill, cheers Dad It was horrible.

Betternc4this Fri 17-May-13 17:50:50

That's what l'm heading towards really now Yoni. I think l should just make peace with my sister and tell her l think she deserves it as she has looked after our parents so well etc etc.
Maybe more chance of her seeing fit to 'treat' her sister that way

You are right of course money matters can become all consuming and make for a sad and bitter existence.

Thanks for the insight.

babybarrister Sat 18-May-13 13:19:24

Message withdrawn at poster's request.

Betternc4this Sat 18-May-13 14:35:35

Yes BB and then it would be medical opinion against the very reputable family solicitor who took their new wills and would be challenging his professionalism. He was obviously happy that they knew what they were doing, or wouldn't have taken instruction l imagine.

Also it is very subjective aswell isn't it ? Whether or not someone really knows what they were doing and historically (as it would be obviously) is even more difficult to assess conclusively.

I believe it is quite a low bench mark of awareness aswell i.e. a basic understanding that they are making a will and the implications of who will get what and be aware of who's who. I may be wrong on that but l understand that even someone with early onset or a low level of dementia could still pass the necessary criteria to make a will.

My mum and dad were knocking on when they made their new wills but AFAIK and certainly in my mums case, neither of them had been diagnosed with any form of dementia at that stage. My dad possibly could have been in early stages then but not sure when diagnosed officially and if before or after will. Maybe that's worth a look at.

But then what? Lots of expense and hassle with nothing at end possibly.

Xenia Sat 18-May-13 15:37:56

The problem here is when they were sane and knew what they were doing these parents decided to do a very rare thing - exclude 2 children and favour one - not something most normal parents would do. They whilst you and sane they have proved they do very unfair things and favour one child over others in a very strange way.

Given their past form it is not surprising after the brother died they would be as unfair and nasty as they were when the brother was alive and have done the same here to the daughter.

It is likely all what is left wil go on the father's care home fees anyway so may be no point in arguing it and very hard to challenge the will. Also if the sum were £10m you might want a go. As it is in legal terms and compared to legal costs hardly anything not worth it. However the father may not have lost his mind enough to make another will - dementia does not preclude that in the early stages so it is certainly worth visiting your father, chatting about these things and he might want to make a fair will now his circusmtances have changed and he's in a home so that both children equally benefit.

Is there a power of attorney in favour of your sister?

LittleFeileFooFoo Sat 18-May-13 15:45:41

I agree with Xenia, your parents have form for leaving everything to the carer child, so it's not likely you'd win a challenge.

Betternc4this Sat 18-May-13 16:14:44

No she isn't poa but appointee for DWP and was always main carer etc to both parents and is/was their respective executors.

I don't think they were nasty to leave everything (which was mainly their property in any event) to our late brother who lived in the house with them and was a joint owner and contributor to the mortgage and upkeep and was their main carer etc etc. Ironically my sister had a big problem with it but doesn't have now it works in her favour hmm

Betternc4this Sat 18-May-13 16:17:13

Dad is way past the point of early dementia and is barely aware of his surroundings now so l don't think any self respecting solicitor would take a new will off him tbh.

digerd Sat 18-May-13 21:45:06

I can't imagine your DM would not have told you or discussed the changing of the will, leaving nothing to you and giving their reasons?

Did your mother need looking after and did sis pay anything towards her keep/ house improvements? It could be she promised to look after dad at home as he has dementia. Your sis was resentful about DB who had lived there for decades and helped out, but now thinks it's fine that she does the same and after only 3 years DM dies and dad is put in a homehmm.
Wonder if she has her name on the deeds hoping the care home can't take her bit . Is she wanting to stay living in the house mortagage free too. Very nice for her. Does she have an income as she gave up her job?

I'm very sorry to hear of the death of your DB and your DM, and that your DF has dementia.

Mendi Sun 19-May-13 07:25:46

I agree with the other lawyers on this thread that it sounds as though you may not have a legal basis for a claim. And that bringing a claim would take over your life and destroy your relationship with your sister.

However, if I were in your position I might look at it like this: your sister has put her own life on hold for an indefinite period of time to care for your parents. No one can predict for sure how long an elderly person will live. If she hadn't given up her job to care for them in the home, then presumably they would have gone into care sooner and all of the equity in their home would have been spent on care fees.

As your sister has been there, there is the possibility that there might be some money left when your dad dies. However, as you rightly identify, there may not be, depending on how long he spends in the care home.

So if there is no money at the end, your sister has given up her life for years to care for your parents, for no financial benefit. If there is some money left, she gets it all.

She has borne all the risk and relieved both of you for a long time of the horrible situation of having both parents in a care home of being cared for in their own home by over-pressured carers on minimum wage. You have been able to carry on with life as normal on the knowledge that your sister is caring for your parents.

In that light, can you see it as 'fair' that your sister should have any money that is left?

Betternc4this Sun 19-May-13 09:02:16

Yes two very differing views there and l agree with points from both, tbh l am somewhere in the middle.

digerd no my sister has no income,on the death of our brother she gave up her full time job to look after mum and dad full time. She has looked after them for over four years btw not three.

Mum and dad didn't tell me as l admit l hardly ever saw them and did fall back on my sister for their care. I was working full time throughout. Only knew they had re-done their wills cos of brothers death really.

Xenia Sun 19-May-13 09:14:15

I think the only hope would be if the will to the sister is a fake. Have you looked at a copy of it? When my parents made new wills they made sure their lawyers sent us all copies to everyone knew where they stood but not all parents do that.

Betternc4this Sun 19-May-13 11:21:27

Yes l have seen a copy of it and it is genuine i.e. there is a letter from family solicitor inviting them to update their wills at this sad time and so on when our Dbro died.

Also agree with Mendi that had my sis not taken over the reins from our Dlatebro then both my parents would have been in a home for some years now and all this would be pie in the sky. That is one way of looking at it, l suppose. Dad in particular was physically very fraill and was starting to have falls and stuff, Our dbro obviously enabled them to stay safely in their own home merely by his presence living there iyswim and he drove them shopping and so on and so forth. My sis otoh didn't live with them so had to visit very regularly (most days) and l know they were very very demanding of her having been used to having our Dbro 'on tap' as it were.

I only really visited for Xmas, Birthdays, Mothers and Fathers Days in the main but phoned regularly and l was busy working full time and looking after my own family.

I am not unhappy about my sisters decision to put dad in a home tbh. he is in a lovely home very caring people and it was well checked out and is very near me so l can visit him much more regularly now. My sis now ironically visits him less often than me though quite regularly.

I think he is better off there as he has constant company and stimulation rather than sitting in a room at my sisters house where with the best will in the world l cant imagine my sis would be sat in with him all day.

I concede that it does at least show she is not all about the money or she would have him live with her, she has room and could have got home care to help look after him. This would have cost much less than his current fees, therefore leaving much more of 'her' inheritance intact.

Mindyourownbusiness Mon 20-May-13 10:11:43

I can see both sides here and it sounds like you are seeing it more from your sisters side now too.

But l suppose it is still very hurtful not to get anything from your DPs and evokes feelings of being a less favoured child maybe or less loved than your sibling?

teresa2003 Mon 20-May-13 11:05:26

Sounds like neither of you have done wrong really just made choices. I really think your DPs have merely followed their previous ways of doing things .
Whilst however it made sense with your DlateBro to be left everything because basically a lot of it (if as you say the property is the main bulk of estate) was his anyway, it doesn't make as much sense with your Dsis except your DPs or some might view it that she has 'earned it' as indeed your lateDBro did.
I just think they have followed a pattern of behaviour, rightly or wrongly to look after their main carer/person who has sacrificed their own life or earnings the most in favour of DC who has been able to just get on with their own life. They have then left it to you but only if your younger sister predeceases you.
I don't think they have thought about the emotional side of the effect on you tbh as mentioned by MYOB above. I think they thought they were being truly fair albeit in an over simplified 'you look after us and we'll look after you' way.
I think your best course if there is anything left worth fighting over is to appeal to her better nature and not try and fight her through the courts. You will end up with nothing and a disgruntled sister and a huge bill no doubt.
If you tell her how you feel and put it to her nicely and say you appreciate fully what she has done and that she should get the lions share, you never know she might decide to 'treat' you.

teresa2003 Mon 20-May-13 11:06:50

'in favour over DC' that should read.

teresa2003 Mon 20-May-13 11:23:00

Another thought aswell.

Many people do go through life just presuming really they are going to inherit their parents property or money or an equal share of it with their siblings if they have any. Nothing too wrong in that it is just a common way of thinking and by and large historically that's what happens to parents estates.

But really as we all know deep down we have no 'rights' to it whatsoever and it causes a lot of terrible family disputes e.g. when a parent remarries and new wife/husband will now get most of ''the DCs' inheritance.

I know it's easy to say, but really we should see it as a bonus if we do inherit anything because up to the moment we pass away it is entirely up to us what we do with/who we give our money to. Such as in this case there is absolutely no legal obligation either for things to be done 'fairly'. Parents can give it all to one DC out of six or to the Cats Home and there is nothing we can do about it.

I do understand your pain however OP.

digerd Mon 20-May-13 14:10:04

My DD was left to care for my DM for 10 years as I was living abroad and DD still worked full-time. My sister was also working full-time and saw DM the sames times as you saw your parents. My DB too.

DM was widowed and had dementia for 10 years before she died.

I visited for up to 4 weeks and 4 times a year and stayed with DM.

When DM died my DD was not left anything. My mother had mentioned it to DB and he said my DD shouldn't be considered any different from all the other GC and shouldn't be left anything in the Will. That if she wants to give her some money, do it while she is alive.

So DM did. My sister was going through mum's finances after she died, and was very stroppy to me about this 1 small sum she had found in DM's years checkbook years before, to my DD.

But the Will left everything equally to me ,DB and DSis. I never thought anything about it as my thoughts were with DH who was battling against cancer and died 8 months after DM sad.

I can understand how you feel , but it is not worth you trying to contest the Will. So glad your dad enjoys his care home as he is in the best place for him and hope he has many more years for you to visit him.

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