Challenging a will. Can our solicitor put an injunction on before probate is granted?

[samanthawashington]

Probate is taking 6 months + and we would like to cut the time span down by asking the solicitor if he can put an injunction on before probate is granted.

My relative is challenging the will of their late spouse.

How big is the estate and what are the grounds for dispute?
In most cases the only winners are the lawyers - the entire inheritance goes on the legal fees. Couldn't you try to find an amicable agreement instead?

@KihoBebiluPute Estate is worth £500K. (Mostly house). The deceased spouse of a 10 year relationship, 8 year marriage has left 80% of the house to the 2 daughters and 20% to the remaining spouse. This is insufficient to buy in that area. My relative is approaching retirement and has put significant funds into the house and paid most of the bills but is not on the deeds. House has doubled in value in 10 years. Obviously my relative will look at mediation, but they have two options, challenge the will or lose their home

The daughters are determined to sell.

was this the daughter's family home? or previously shared with a former spouse?

Is there a life interest in the house for the spouse?

And yes you can put a stop on probate in these circumstances.

www.gov.uk/stop-probate-application

They can't sell until they get probate. An injunction is only needed if you want to stop them doing something or force them to do something.

Your relative does not have to wait until probate has been granted before making an Inheritance Act claim. Section 4 of the act says a claim must be made no later than 6 months after probate is granted but also says that a claim can be made before probate is granted.

@StCharlotte No life interest for the spouse. Home will literally be sold and they are left to rent.

The daughters are trying to rush things through, but probate is taking several months because of covid so it seems sensible to put an injunction on as soon as possible to force them to mediate. It was not their family home.

@prh47bridge Relative just want to mediate for a fair and equitable settlement and thinks an injunction will encourage them and their solicitor to mediate and give them a life interest and they keep their 80% share in trust.

doesn't sound like there's a life interest, otherwise why challenge the will?

sorry cross post

I'd advise your relative to put personal valuables and items they have bought for the home into storage.

@supportivemyarse I don't think you understand the question, sorry if I haven't made it clear.
The deceased spouse had the deeds in their name and the will read 40% to both daughters and the remaining 20% to the remaining spouse. The daughters want to sell the house to get their money. This leaves the spouse with very little money. Relative is contesting the will under the Inheritance Act 1975. No one has a life interest currently. The will did not state it needed to be sold just 'unless necessary'. The DDs want their money.

The DDs are trying to take joint assets, like a car, as part of the estate.

I understand the question perfectly.

You say that as well as the main asset, the DD's are trying to take joint assets. This can be messy, sole assets of the surviving spouse can be difficult to prove and its easier to secure these now rather than try to reclaim later (especially from people who want to liquidate fast), hence my advice that your relative secures items they purchased for the home. This is not instead of, its as well as. Do you understand?

[quote samanthawashington]@prh47bridge Relative just want to mediate for a fair and equitable settlement and thinks an injunction will encourage them and their solicitor to mediate and give them a life interest and they keep their 80% share in trust. [/quote]
In my view he should lodge an Inheritance Act claim. That should make it clear that he is serious.

@supportivemyarse Relative has secured the car but they took jewellery and documents, some of which were in my relatives name only. Relative is a soft touch and didn't realise this was happening at the time.

@prh47bridge Yes, it will be under the inheritance act and hopefully the solicitor will do this soon and not wait for them to get probate. Living for 12-18 months with uncertainty is not ideal.

yep. shame for your relative, hope they get their items back.

at least by doing this you're forewarned they're unlikely to want to negotiate favourably at mediation. your relative needs a good lawyer. if you're looking on MN for advice that your solicitor hasn't already given, find a better one.

Hmm. That's not a clear-cut case at all and a fight to resolve it will certainly cost a disproportionate amount of the estate.

From the point of view of the deceased, he clearly consciously decided that his new relationship and second marriage should not be allowed to disinherit the daughters of his previous marriage. He has left a significant share to the second wife which could certainly be seen as reasonable recompense for the amount of investment she has put into the property in recent years. I don't think that your relative should expect much more than this. £100,000 may not be enough to buy outright in the area but it is a good lump sum. Certainly any jointly-owned assets, or items she owns herself shouldn't be taken from her and she has every right to demand her own jewellery back. Significant assets that were technically owned by the deceased (e.g. a car if it is his name on the log book) can form part of her 20% but only at their current sale value, not the original purchase value.

Taking this to court isn't the way to go here.

@KihoBebiluPute

Hmm. That's not a clear-cut case at all and a fight to resolve it will certainly cost a disproportionate amount of the estate.

From the point of view of the deceased, he clearly consciously decided that his new relationship and second marriage should not be allowed to disinherit the daughters of his previous marriage. He has left a significant share to the second wife which could certainly be seen as reasonable recompense for the amount of investment she has put into the property in recent years. I don't think that your relative should expect much more than this. £100,000 may not be enough to buy outright in the area but it is a good lump sum. Certainly any jointly-owned assets, or items she owns herself shouldn't be taken from her and she has every right to demand her own jewellery back. Significant assets that were technically owned by the deceased (e.g. a car if it is his name on the log book) can form part of her 20% but only at their current sale value, not the original purchase value.

Taking this to court isn't the way to go here.

This is wrong. On the information posted by the OP this appears to be a very clear cut case.

If his objective was to ensure his daughters were not disinherited, he could have left his wife a life interest in the house with it passing to his daughters on her death. There was no need to effectively leave his wife homeless.

The approach the courts take to Inheritance Act claims is that the widow is entitled to at least as much as she would have got had the marriage ended in divorce on the day her husband died. Given that the house appears to have been his only significant asset and she does not appear to have any significant assets of her own, the idea that she would only have got 20% of it is fanciful.

He could have left a life interest, wonder why he didn't.

Sounds like a non matrimonial property, the OP doesn't make it clear. A share of the increase value on the house proportional to the length of an 8 year marriage may not cover legal fees and give the widow more than she stands to inherit at 20% anyway.

@supportivemyarse

He could have left a life interest, wonder why he didn't.

Sounds like a non matrimonial property, the OP doesn't make it clear. A share of the increase value on the house proportional to the length of an 8 year marriage may not cover legal fees and give the widow more than she stands to inherit at 20% anyway.

Whilst the deceased bought it before they married, it was the matrimonial home. Given that they lived together in this house for 10 years (8 years married plus 2 years cohabiting before that) and there were no other significant assets, it is clearly an asset that would have gone into the pot to be split between them if they had divorced. Unless there is something the OP isn't telling us, the widow would have been entitled to a lot more than a share in the increase in value.

It seems that, yet again, someone asking for legal advice is getting responses from people who don't know the law and are guessing.

how rude.

An asset in the pot yes. The OP doesn't give enough detail to state a clear case.

@prh47bridge I know who to listen too lol . You did my will 🤣

@KihoBebiluPute Relative has a solicitor but they are extremely busy and not able to face to face meet at the moment. Hence the slow pace. What has been made clear is that joint property (car) falls only to the surviving spouse and does not form part of the estate. Log book or no log book, regardless of name. In fact the V5 states clearly, registered keeper is not necessarily the owner.

Relative has no intention of fighting it out in court and wants to mediate giving the girls their 80% but to remain in the house until death or downsize. Both girls are adults with their own property. Relative is approaching retirement age. The house was bought by the deceased at the beginning of the 10 year relationship and paid outright with the deeds exclusively in their name. My relative has paid the majority of the bills (has proof via bank statements) and has put in over £90 K to add an extension and upgrade the property. A 20% share is a shabby reward for that.

Strangely, friends on both sides say how devoted the couple were to one another and how the deceased talked about my relative with absolute devotion, as I know my relative did. So this will, made in secret 3 years ago and never disclosed to my relative, came as a shock to everyone.

Strangely, friends on both sides say how devoted the couple were to one another and how the deceased talked about my relative with absolute devotion, as I know my relative did. So this will, made in secret 3 years ago and never disclosed to my relative, came as a shock to everyone.

I totally sympathise with this, I've been in a similar position to your relative in the last year (look up my thread if you are inclined) and it is heartbreaking. I don't have any advice but came on to offer my sympathy

@supportivemyarse

how rude.

An asset in the pot yes. The OP doesn't give enough detail to state a clear case.

I'm sorry you think I was rude. But the OP does give enough detail to state a clear case.

If a house that was owned by one party before the marriage is used as the marital home it will usually be treated as a matrimonial asset. Given that it was the only significant asset and that a 20% share is insufficient to meet the widow's reasonable needs, she is entitled to a larger slice of the estate than has been left in the will. She would have got more than that if the marriage had ended in divorce. She will get more than that if she makes an Inheritance Act claim.

@FrangipaniBlue I did see that, and can imagine how heartbreaking that was for you. My relative supported his DW through 2 cancer diagnoses and totally adored her, and we know she felt the same, so to find out she had a secret will leaving almost everything to her DDs was horrifying. And she literally denied having a will on her deathbed to him. The will is legal but not fair and doesn't even specify selling the house, but the DDs can only see £ signs and, despite having a previously good relationship with him, want him gone. His DW could easily have seen a solicitor and written up a fair will leaving their share in trust, so everyone is as shocked as he is.