Defence evidence

[Willadvice2021]

Just curious about what evidence is acceptable to be used for legal defences? There is a solicitor but it takes a week or so for her to get back so trying to cover all angles.

It’s a big Long story I have written about before using this name. (Not my usual name).

In short if a neighbour/carer/friend stated that the decreased told them certain things, can this be used as evidence?

Lots of people have contacted Adam to ask what is happening, it’s a very tight knit street. Everyone knows Ben as he used to live on the street but the moved around the corner. There have been several carers, several friends and all the neighbours coming through stating they knew facts such as the alleged assault, the change of will, and are brining up several other things such as Ben trying to force his parents to sign over power of Attorney for their money to him. All the people, and there is a list of over 20 people are willing go make legal statements. Is this evidence? Or does it not count?

Medical records have also been sought. Which should back up a lot of points including the alleged assault, the lack of contact, the fathers mental state when he changed the will, carers stated they also recorded the assault on the mother in their notes and applied cream to her mouth, so all of that should be in there, as well as the father requesting the locks get changed as he was scared of what Ben was going to do and didn’t want him in the house. So that’s really solid evidence but while we are waiting we are wondering about if the neighbours/carers/friends statements are valid as that would save a lot of time in the meantime.

Also, what about statements form those who are related to the beneficiaries?

What are the charges being bought against the person, have the police ever been involved.

None of this sounds like defence, it all sounds like prosecution?

Perhaps I've got the terms wrong.

Essentially it's a will dispute. Person Bs share was reduced in the will for various reasons, which they are disputing, such as assaulting their mother, not attending their funerals, going no contact for years ... they are arguing this wasn't the case but there are plenty of people who can verify that this was the case and/or that it was at least what the father stated. As in while no one saw the assault, it was talked about with various people over years.

Are you just trying to gather evidence yourself to counterclaim Ben contesting the Will. What does your Solicitor advise you do. Are these people who heard these unwitnessed allegations being asked to make statements about what they were told. I would leave it up to the Solicitors to decide what is relevant and how to proceed.

Surely the writer of the will can leave what they want to whoever they want for as spurious a reason as they like?

I always assumed people could leave what they want where but turns out wills can be contested.

Solicitor has asked for certain points made by the person contesting to be answered, such as the fact they weren't of sound mind etc and what evidence we have that he was. Medical records have been sought but we were wondering about statements from people and if they are valid. Medical records could take months.

It's also been asked that they explain why the person is receiving a smaller share than others, and the reasons are they person assaulted the person and had little to do with them for years, so I'm not sure how to prove that was the case other than ask for the neighbours to share the fact that the person who wrote the will shared this info takin with them.

Does that make sense?

I'm not actively involved but they were asking me earlier and I didn't know. For example I was told things by the person who died and I've witnessed the actions of the person contesting but I'm related to one of the beneficiaries, there are plenty of others who aren't who can be witnesses but I'm not sure if that is the the of evidence wanted.

They have asked the solicitor but because it takes a week to 10 days to get a response it's taking forever to just write the response to the last letter so was wondering if people knew if people's statements can effectively be evidence ?

My understanding is that hearsay is usually not submissable as evidence, but that the court may allow exceptions in certain circumstances where original evidence cannot be sought, such as where the person has died.

In terms of capacity to change a will, the first question to ask is whether there is reason doubt they had capacity, as capacity is always assumed to be present until demonstrated otherwise. On what grounds are they suggesting the person lacked capacity?

@Willadvice2021 I remember your previous thread, I guess these things take ages, I knew wills could be contested but yours sounds really complicated

@justchecking1

My understanding is that hearsay is usually not submissable as evidence, but that the court may allow exceptions in certain circumstances where original evidence cannot be sought, such as where the person has died.

In terms of capacity to change a will, the first question to ask is whether there is reason doubt they had capacity, as capacity is always assumed to be present until demonstrated otherwise. On what grounds are they suggesting the person lacked capacity?

They are saying he was forgetful and devastated by the loss of their wife.

It just seems annoying that Ben can say things without evidence but they can't respond without going through the expense of getting medical evidence to prove.

Is it here-say though if someone says "as a carer I applied ice to her lip after she said her son hit her"?

It's so stressful as it's costing so much in legal fees to defend the will and Ben just keeps coming up with more and more nonsense, it's a small village, everyone knows what Ben was like. Neighbours seen him screaming and swearing on the street at his parents and then the lack of contact for years since.

[quote MissSmiley]@Willadvice2021 I remember your previous thread, I guess these things take ages, I knew wills could be contested but yours sounds really complicated [/quote]
Yes,I'm glad I'm not directly involved but Adam is having a difficult time and is absolutely so stressed by it, it's so annoying as each new letter comes up with new ridiculous statements which everyone could prove are not true but no it's a huge thing to do if we can't use witnesses, like he is saying is in contact everyday, how do you prove that without using people who were in contact, I assume phone records could be gotten? But it's growing arms and legs, and he's throwing everything at it.

Solicitor seems great, all no nonsense but it's just time consuming, medical records were sought but told due to Covid there were massive delays and looks like Ben has already tried to access them so there is a conflict there now.

@justchecking1

My understanding is that hearsay is usually not submissable as evidence, but that the court may allow exceptions in certain circumstances where original evidence cannot be sought, such as where the person has died.

In terms of capacity to change a will, the first question to ask is whether there is reason doubt they had capacity, as capacity is always assumed to be present until demonstrated otherwise. On what grounds are they suggesting the person lacked capacity?

This is wrong. This is a civil case, not a criminal case. Under the Civil Evidence Act 1995 evidence is not excluded just because it is hearsay. It will not carry the same weight as evidence given in person but it is still evidence.

@prh47bridge thanks for explaining. Is it still here-say then if someone says they applied ice to a bruised lip that the deceased said was caused by the someone(Ben). Or of nursing notes recorded the same?

The executor is being asked to explain his understanding of why the will was changed and what evidence he has, but surely it's all just here-say?

If there is significant levels of people saying the same thing will that make a difference?

Thanks

Saying you applied ice to a bruised lip is not hearsay. Saying that the deceased said the bruised lip was caused by Ben is hearsay.

Similarly with medical notes, anything they say about the nature of the deceased's injuries and the treatment given is not hearsay. Unless medical staff witnessed the incident, anything in the notes that says it was caused by Ben is hearsay.

As per my post, as this is a civil case hearsay evidence is allowed. It will carry less weight than direct witness evidence. But, if a lot of people have reported that the deceased claimed Ben injured them, that certainly confirms that the deceased said this and, absent evidence to the contrary, is strongly suggestive that Ben did indeed injure the deceased.

My advice would be to stop worrying about what is and isn't acceptable evidence. Get together as much evidence as you can and give it to the solicitor. They will look at whether any of it is inadmissable.

@prh47bridge

Thank you, that really helps. It's not be directly involved in this, it's just I keep getting dragged in/ask questions of as I have dealt with some legal things in my own life (consumer law and SEN tribunals), which have no relevance or similarities here.

I think the the fact the house has sat empty now for quite awhile and people are asking and like I say it's a small community so people are calling Adam and Craig with things and we didn't know if we should keep updating the solicitor or if it doesn't matter as it's not useful.

Thanks for clarifying things 😃