To contest the will

[Coastalcommand]

Sorry if this is long, just trying to explain.
My grandparents were happily married until my grandmother sadly died about 15 years ago. She left everything to my grandad, as you would expect.
This included a large house, substantial savings and various other valuables.
My grandad was lost without her and married again, to a woman who also had her own family.
This was fine, we all got on well, until my grandad sadly died last year.
They drew up wills that left everything to each other, with whoever died second leaving it to their families that split with 80% going to our family and 20% to hers, reflecting the estate at the time they met (she did not own a property or have savings before they married).
As it happened, she sadly died a couple of months after him, and unbeknown to us, her children had been made executors to a new will which left everything to them.
To complicate matters, she was suffering from memory loss and dementia before she died and we don't think she would have had capacity to make a new will.
We have written to her Family and they responded through solicitors to say that they don't think she had anything wrong with her and if we want to challenge will have to take it to the courts.
This seems to be very expensive and I'm not quite sure how we would go about it. But it's sad that my grandparents wishes will not be followed and we have not even been allowed to collect our family photos and Mementoes from my grandparents house before it was sold. They didn't tell us she'd died and got a house clearance firm in without our knowledge. There is nothing left.
One of the executors actually sent a text message to my mum saying that if we do challenge it will we will get nothing anyway as they will have already spent all the money before it goes through the courts.
Would I be unreasonable to try to help my mum telling to this? Does anybody have any experience of this? Do will ever get over attend and is it hugely expensive to do this?

OP - not really my area but as I understand it, if the wills were "mutual wills", the survivor isn't able to change it after the death of the first. This may be an alternative argument to the dementia one.

Sam that's not correct - mutual Wills is more of a marketing term tbh to illustrate that the Wills are effectively mirror images of each other, leaving everything to the other party. However, each individual (with capacity) is able to change their Will at any time without reference to anyone else.

If they defended it then they would get nothing either so they will probably come to terms if you push ahead.

Yes, you can always change your will even if it was "mutual". So eg when I divorced I paid for and encouraged by ex to make a will in favour of our children which he did but I knew that the month after if he wanted he could leave it all to the cat's home if he chose. I hope he made a new one when he remarried.

Mrsk, your new will can indeed leave your house to your children not your new husband although if he is left destitute and depends on you there is a 1975 Act he can sue under after death to get something from the estate. A bigger issue is if you divorce as your husband might well then get half your house and your children's inheritance of it would then disappear as it doesn't matter whose name the house is in.

Thing is, a person could make a mirror will with a partner/spouse, and then THE VERY NEXT DAY make a will with completely different provisions.

If you want your property to go to a particular person/group of people then the only way you can ensure that is to make sure your will says so.

IANAL but I think one can include "for my wife's use until her death, whereupon it reverts to my son" clauses, can't you? That is, it's effectively in trust until the wife's death but the underlying ownership is the son's.

Trying to get around inheritance tax by leaving everything to your spouse and trusting them to do what you actually wanted is very risky - for your wider family and friends; obviously you yourself will be oblivious.

This isn't really my area, but there may be a difference between mirror wills, which as posters have said can be changed at any time, and mutual wills, which might give rise to some sort of trust in relation to the estate.

But wills have to be legally independent of each other, otherwise the surviving party would never be able to change theirs, even in the case of eg massive legislative change making the intent and the effect of the wording become opposites.

Just wishing you luck. This is so unfair.

I can't advise on costs but they're comment about there being nothing left because they would've spent it all is invalid.
If the court orders the money to be paid elsewhere, they have to pay it regardless of whether they've spent it or not, it's on them to then find it.
I think you have a very strong argument and should get a good solicitor. Although, without medical records you cannot prove her dementia.

Thank you - you are all very kind. I will show my mum your posts and try to get her to see a solicitor. She's scared of the upfront costs and fears if she loses she will have to pay everyone's costs, which I don't know if is the case or not.
It's been hard as she is still grieving her father. Finding out that all the family photos and her parents' personal items have been thrown away has been very hard for her. We have been to charity shops in the area and found a few of their books and items of clothing, but 99% has been scattered to the far winds. It's hard to know what to say to help.

If this helps anyone to change their will and stops it happening to anyone else I'll be very glad! Horrible situation, particularly when grieving for a loved one.

She won't have to pay, the costs will come out of the estate.

Will the costs come out of the estate even if she loses though?

Mediation is a much cheaper option than going to court and often very effective. Do get advice as soon as you can. What an awful situation.

Mrskeats, apologies if you already know this, but if you get married any will you made beforehand becomes invalid, although I think (I am also not a lawyer) the exception is it the will was clearly drafted in anticipation of your marriage (i.e. something like that is stated in writing in the body of the will). So take care either to get the will drawn up that way or wait till after the wedding.

If they are that cold hearted that they got rid of personal photo's etc then I don't think mediation will be very productive.

The other thing to check if they died very close together is whether your grandfather's Will had a survivorship clause.

It is quite common because say you are both in the same car crash and one dies instantly and the other dies a day later it would be deemed 1 died left estate to 2 - it all becomes 2's estate.

Usually there is a clause that says provided 2 survives 1 by 28/56 days. If they then die in that period 1's estate goes to his beneficiaries as if 2 had predeceased him and 2 goes according to her estate.

On the face of it it looks as though it would be very hard to prove step-gran had dementia. Also hard to prove undue influence if she left it to all her children equally. sounds like what a mother would do. If she left it to a care worker or just one child then easier to go for undue influence.

If she loses she will not only have to pay her own costs but also the costs of the estate in defending the action.

Definitely arrange to speak to a solicitor. There are many cases like this of contentious probate and they will be able to guide you in the chances of successfully challenging the will. You need to have an idea of the assets involved to assess whether it will be worthwhile as these cases can often be long and protracted and rack up bills accordingly. Some solicitors have free initial half hour slots, definitely get some advice.

Is there any chance her GP will have a record of her mental state that could back up your claim?

It cost me around £5,000 to defend a contested will claim, but that was a decade ago so it would be much more now. Having been through that with money grabbing estranged relatives, I detest anything to do with wills now.

In this situation though there was nothing legally stopping the new wife from creating a new will and not following the grandparents wishes, of course. If she was coerced by the children or unfit to decide to do so then that would be different, but if one will leaves everything to someone and they then choose to change their will and distribute elsewhere then there's nothing that can be done about that.

FWIW the will I dealt with was contested on the basis of capacity (amongst other things) and that particular point was given very short shrift by the court - probably because it was a tactic they used, rather than anything that had evidential foundation particularly as they hadn't spoken in 25 years but if you have a clinical diagnosis it's worth a shot. Also was the new will done through solicitors, properly witnessed etc? Worth checking as even minor points can invalidate a will.

If there is proof that your grandfather wanted the estate left to his offspring it doesnt matter whether his wife had capacity when she changed her will. Your mum could have challenged your grandfathers will and been likely to succeed (as it was also her mothers estate, and because you have a reasonable expectation to benefit from your parents will). When a step parent changes the will to cut out one side of thr family the case is even stronger.

Most solicitors will consider your case before you have to pay anything, and tell you whether they will take the case and their expectations of success. Get to a solicitor asap to stop more or the estate being spent- you can take it one step at a time and dont have to commit yourself to legal action untill further down the line when you understand the implications.

@ICancelledTheCheque

Did the fact your estranged relatives not spoken in 25 years get raised in court? Can that be proved? Did anyone mention it?
Whats to stop estranged relatives lying and saying they had wonderful relationship with x?

In English law though there is no reasonable expectation or right for chidlren to inherit and loads of people leave their estate to their second spouse who then leaves it all to her children and that is usually lawful, I am afraid. If the grandfather left it all to his new wife then that is not his wanting it left to his off spring. It is his intention to leave it to the new wife to the presumption is goin go be the new wife's child win all in my view so may well not be worth contesting unless there is such a huge sum at stake that the legal costs would be tiny in comparison.