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?

You have no call in law (as I understand it) on his 2nd wife's estate.

The OP'S mother may not have a claim under the Inheritance Act but she does have the right to dispute her step mother's will. She can argue that the deceased did not have testamentary capacity or that there was undue influence. If she succeeds in getting this will overturned the previous will would take effect. She is a beneficiary under that will.

Actually I am coming to think that the only way you can really ensure this is to give the property to them while you are alive!

Couldn't agree more, based on my own experiences and others

prh47bridge Fair enough I just didn't know all those other points to that case. Still think it's wrong though and an up yours to the deceased and the charities

Prh

England the courts have generally upheld the right of parents to disinherit their children

This is a genuine question because I'm very interested in the subject, what about the case can't remember the ladies name but her mother didn't leave her anything because she has eloped or something at 17 and mum never forgave her and the court decided her mother had been harsh and spiteful (or something like that) and they gave her around 160k from the estate?

Risky to give all your assets away before you die, because there are cases where unscrupulous relatives get their hands on an elderly person's home and/or capital and then wash their hands of responsibility for their benefactor.

If your mum is prepared to do it follow Emmu's advice.
Make sure she writes down a list of dates when things happened (deaths, marriages, will allegedly made on death bed by GF's wife) and takes along any copies of previous wills, the text from the executor and everything else relevant. Take notes

what about the case can't remember the ladies name but her mother didn't leave her anything

That is the Ilott v Blue Cross and others case mentioned earlier. It got a lot of headlines for the award by the Court of Appeal but they weren't considering whether or not the daughter should inherit, just determining the amount. The case is now with the Supreme Court with the ruling expected on Wednesday but I understand they again are only considering the amount. The executors are still party to the case but are not mounting any kind of defence, leaving that entirely to the charities.

The reasoning in this case appears to be that the daughter had been living on benefits for most of her adult life and the mother had no connection with the charities named in her will. In the particular circumstances of this case the High Court decided that the daughter was entitled to inherit something.

In most situations the courts will still uphold the right of parents to disinherit their children. However, if the children are in difficult financial circumstances the courts may take the view that they are entitled to some level of provision from their parents' estate.

Surely a big issue here is that you're unlikely (as non relatives) to get to see your step grandmother's medical records; if they really do show she has dementia I can't imagine her relatives/beneficiaries will want you to view something which might strengthen your case

I think solicitors are supposed to satisfy themselves that their client has mental capacity to make the will they're being asked to draw up, so if this one was happy to do so, even at a deathbed, the relatives will almost certainly use that as "proof" she knew what she was doing

Certainly I'd get advice, but I wouldn't be over-confident about being able to overturn this; sadly, there's a reason for the old saying about "where there's a will there's an argument"

The Blue Cross case concerns me as plenty of adult chidlren fall out with parents and parents choose not to leave them a penny (fair enough) and children may then be on benefits but so what? We should then not force will changes in those cases. I can understand the 1975 Act - if you have children who depend on you and you die and that little 3 year old would otherwise be left without a penny but not hulking great adults who were often so unpleasant to their families they are cut off and could get a job if they tried.

Puizzled, that's right . My father's solicitor went through the test with me and he thought my father with early stage dementia met the test to give 25% away to the alleged financial abuser and I looked at the law society guidance myself - there was no point in our fighting the new will particularly as we still got 3/4s.

Do most solicitors these days insist on meeting the testator to satisfy themselves of capacity these days - ie not accepting just e-mail instructions? Or even instructions by phone?

I think so but if you don't use a solicitor and just someone else that's whn your protectoin is worse for wills and things like that. Solicitors also need to see and verify ID.

Can a beneficiary of a will be one of its witnesses? I thought not

When my mother made her will her solicitor was very concerned that he has to be satisfied as to her mental capacity. He said she had capacity but a few months later she would not have had. None of her children were there and the other witness was another solicitor who was a neighbor

Can a beneficiary of a will be one of its witnesses?

Apparently not; though it seems there are a few exceptions: www.simplifywills.co.uk/wills/making-a-will/who-can-witness-a-will

If her will was made by a solicitor it will be very hard to overturn as he/she will have had to ascertain she had the me tal capacity to understand what she was proposing. It will have been witnessed not by the executors as they were beneficiaries. They will not have been present when it was written. The estate was hers to do as she liked with unfortunately. Just as, if she had died first, your grandfather could have left everything to his children and left hers out.

If you contest the will, it will cost a lot of mney and you are unlikely to succeed if it was done by a solicitor. You may have a better chance if it was something she did herself in the presence of her children as you could argue undue influence. However, my understanding is that would not put her previous will back in place and the money is still likely to go to her children.

If people re-marry they have to have very good legal advice when it comes to wills or it can end up in a situation like this. which is awful. These people sound frankly dreadful.

Do most solicitors these days insist on meeting the testator to satisfy themselves of capacity these days - ie not accepting just e-mail instructions? Or even instructions by phone?

My most recent will was arranged by email and paper correspondence because I got it drawn up for free through Unite, my union, so the solicitor didn't offer appointments in order to keep costs down. I did have to meet him to get it signed/witnessed at the end but that was all and it was a very brief meeting.

The Blue Cross case concerns me

Me too which is one of the reasons I brought it up on this thread. Not only is it worrying for the testator that their wishes will be dismissed after their death but as I understand it it's a concern for charities who rely on this kind of income.

My great-aunt had dementia and re-wrote her will after her husband's death. They had mirror wills, dividing their estate between their nephews and neices on both sides of the family. However, she left it to her favourite nephew who looked after her. It was drawn up by a solicotor who visited her. It was witnessed by her local priest and the solicitor. No one else was present. Her nephew was unaware of the inheritance until she died - 3 years after writing it.
Her nieces considered challenging it and got legal advice. They were told:
They could not expect to benefit as they were not financially dependant on her
The solicitor had done the will legally and there was no problem with it
He had checked she had mental capacity at the time and was satisfied she had
As the beneficiary was not present and the witnesses were independent - priest and solicitor- and not known to the beneficiary, there was little chance of proving undue influence.
The cost of challenging would be £50,000 at least if it went to court and it could drag on for a long time with mounting costs.

They did not challenge it. They felt the nephew deserved the lion's share because he had cared for her. They didn't think the challenge was worth it for a small share.

Who were the witnesses op?

but not hulking great adults who were often so unpleasant to their families they are cut off and could get a job if they tried agree or even hulking adults who want slice of pie who never spoke to or helped relative in late life etc who work

These people sound frankly dreadful

They certainly do - though it seems obvious they saw their chance and grabbed it with both hands

Overall I agree with PPs that it would have been better if the grandfather had taken proper legal advice when he remarried, perhaps leaving property to their children but with his new wife enjoying lifetime use of the home/interest on savings or whatever. Unfortunately, just assuming your widowed spouse will do what you wanted is simply too risky

Has your mum got family legal cover on her home insurance policy? If so they will get a solicitor to review the facts and if there is an over 50% chance of winning they will cover costs but take them out of your the settlement if successful

I see Heather Ilot has lost the case now which I think is the right decision

I see Heather Ilot has lost the case now which I think is the right decision

The Supreme Court has indeed decided against her.

The Supreme Court acknowledged that a different judge might have awarded Mrs Ilott nothing at all and stated that would have been a legitimate outcome which would not have been overturned on appeal. However, the original judge in this case decided that she was entitled to some provision and his reasoning was not legally flawed so that decision stands.

The significant thing in this respect is that the Court of Appeal stated that the long estrangement between Mrs Ilott and her mother, and her mother's clear wishes as expressed in her will carried little weight and that Mrs Ilott's lack of expectation of any inheritance was similarly of little weight, in part because the charities also had no expectation. The Supreme Court rejected this part of the Appeal judgement completely, deciding that the original judge was quite right to take these factors into account.

The original judge awarded Mrs Ilott £50,000, just over 10% of the estate. The Court of Appeal increased that to £163,000.

The bulk of the Court of Appeal's award was intended to allow Mrs Ilott to buy the housing association property in which she lives. The Supreme Court has reaffirmed the statutory position that any award is for maintenance only. The Supreme Court has also pointed out that the Court of Appeal thoroughly misunderstood the effect of its award on Mrs Ilott's benefits whereas the original judge was correct, despite the Court of Appeal criticising him on this point.

The Supreme Court has restored the original order so Mrs Ilott is entitled to £50,000. She may actually receive more than this as apparently the charities have made an arrangement with her as to what would happen in the event of the charities winning the appeal.

@Coastalcommand hi I was just wondering if you did end up contesting the will and if so how did it go as I am also considering contesting a will. thank you