Should I contest the Will?

[pickledcrumpet]

My late parent passed away just over two years ago. They lived on their own but had a lot of assistance from a specific relative as well as daily meal service deliveries and nurse visits. They were also diagnosed with Alzheimer's. I lived a two hour plane trip away most recently and prior to that the other side of the world so only visited a few times a year as I had a demanding job and young family but I telephoned them nearly daily. This other relative let's call them "Sally" assumed more and more responsibility over the years and took over all financial affairs as power of attorney by the time my parent died. Unfortunately I never discussed the Will with my late parent, I was embarrassed and taught it was vulgar to talk about family money. I was made aware by "Sally" they had encouraged my late parent to write a Will. After the death I was told by Sally she was the executor and she told me the entire estate was to go to myself and my children. Having not dealt with the situation I did not question. Months passed and I was asked about sale of house and what would like to do with the proceeds but I hadn't been given the Will or knew any details as to the value of the estate/bank accounts etc. finally I bit the bullet and asked to see the Will and was surprised to learn I would not be managing my own children's estate until they were adults, Sally would. I sort legal advice and was told this is unusual and I should request I manage this as well as a list of assets and expenses to date. Salt refused both. I then engaged a lawyer who noted the Will was downloaded from the internet, and of very poor quality/unlikely to have been shown to a lawyer. I also then discovered there was also a codicil, after my lawyer requested to see it, we lessened approximately 1/3 of the estate would go to Sally and her children and it was signed 3 months prior to my late father passing. My lawyer also questioned the validity of the Will and codicil as Alzheimer's was on the death certificate. We have finally reached a point where sally has agreed to let me manage my children's inheritance but she is refusing to budge on the codicil written only 3 months prior to death. I have asked to have access to my late parents medical records as I don't know the date he was formally diagnosed but I have reason to bet it was prior to the Will and sally has refused. My only choice now is to take Sally to court. I know my late parent was incapable of writing a Will and also trusted Sally. They would have signed and agreed to anything Sally put in front of them. Going to court will be expense and I risk losing. Any advice on whether to go to court or bow out? I strongly believe Sally wrote the Will, Sally took advantage of my late parent and felt they should be compensated so added the codicil just prior to my late parents death. The fact that Sally is not willing to let me see the medical records I believe is also very telling. Thoughts?

Mediation is much cheaper than Court proceedings, I believe. Could be useful here.

From my understanding she had his signature for the codicil witnessed by a JP. No solicitor involved. He didn't even write the date himself, that is in her writing. It two paragraphs crudely typed. I don't know when she lodged it. But she lied to me when he died, telling me his entire estate was for me and the children. The only reason I questioned it in the first place was because I didn't want her managing my children's inheritance, having to submit receipts to her if we needed to access it for education etc but she wouldn't relinquish so I appointed a lawyer. We no longer have a relationship. My DH was upset at the thought of our DC's coming into money at the age of 21 and blowing it and generally being irresponsible. We would prefer to invest it in bricks and mortar for them. (She wanted to pay for a financial advisor to invest in shares). @NameChangeExtraordinaire my understanding is all the legal fees come out of the estate. I haven't had a clear answer if this includes Sally's portion however.

Hi OP,

Lots of options to weigh up here the cost of taking her to court, any inheritance tax that may be involved if you do win and also the possibility that you don't.

I think firstly you need to stop going through "sally" for medical records and go directly to pals for this information. You might find her stance on everything will change if you can prove the diagnosis first via solicitors and come to a may suitable agreement.

She sounds as though she will fight you on this though and that she thinks she entitled to this money so you do need evidence instead of he said she said.

My Nan tried to take me to court to contest my parents Wills, we kept asking her what she wanted, what she felt she was entitled to ect but she dragged the bickering out for 2 years in the end it cost me 10K in solicitor fees to finally just get a sum from her. I just paid it in the end not because I thought she was entitled to it but because I wanted to move on. That still wasn't good enough though and she wanted a hand written letter to say I agreed I felt she was truly entitled to that money, my solicitor told her where to go instead 😂

Your dc would have the chance to sell any property you've bought for them when they come into their inheritance, you can advise them but you can't legally stop them blowing their own money. I think a good sit down talk with Sally and a mediator would be very useful. There are gaps in what you understand was happening with your df in those last months and it could be useful to understand these better. You might still decide to take her to court of course but you'd have more knowledge.
It seems very strange she didn't tell you about her share - how was she hoping to receive it if you thought you and your dc got it all?

Over the rainbow more than me I think.
I am a lawyer, but criminal bar not probate.
Have recently been an executor with probate solicitor instructed where there might have been a contest and also recently friend contest a will and went through all steps.
So I know basic approaches.
Think overtherainbow and some others know more - in any event you need to get your own legal advice but we’ve given you some questions to ask etc.

Thank you again for all the replies. I am not in direct communication with Sally, it is all via lawyers. I was advised by her lawyer not to contact her and go through him within the first six months of this ordeal. This was before I had even instructed my own lawyer. As we are not in the UK I'm not sure the same laws apply in regards to his medical records. I don't think remediation is an option. Next step is to file an application to the courts if I wish to proceed.

@pickledcrumpet

From my understanding she had his signature for the codicil witnessed by a JP. No solicitor involved. He didn't even write the date himself, that is in her writing. It two paragraphs crudely typed. I don't know when she lodged it. But she lied to me when he died, telling me his entire estate was for me and the children. The only reason I questioned it in the first place was because I didn't want her managing my children's inheritance, having to submit receipts to her if we needed to access it for education etc but she wouldn't relinquish so I appointed a lawyer. We no longer have a relationship. My DH was upset at the thought of our DC's coming into money at the age of 21 and blowing it and generally being irresponsible. We would prefer to invest it in bricks and mortar for them. (She wanted to pay for a financial advisor to invest in shares). *@NameChangeExtraordinaire* my understanding is all the legal fees come out of the estate. I haven't had a clear answer if this includes Sally's portion however.

No, that's not true at all about costs, unfortunately. Costs are usually not decided until a court case is won or lost and usually the person who loses pays - it is rare for this not to happen. If you don't go to court and go to mediation (which is likely and what every decent solicitor and the Courts will advise) then it may be that it's decided that costs are paid for by the estate but that would be with the agreement of everyone involved. In the meantime you have to find the money to pay your solicitor/barrister etc or, if you find a decent solicitor, they will let you run up a tab against what you are due to receive from the estate.

Don't let this put you off though, the fact the will was not executed at a solicitors and was written in very dubious circumstances when your father had Alzheimer's gives you a case, definitely a better case than mine (as fishy as mine was).

MY dc have inheritances in trust and they were put into stocks and shares by the trustees of their funds - who were not their parents. This is quite normal.

Your arrangement to use their money to buy them houses with it doesn’t sound like something that is usually possibly in the uk.

Oh I've just read you are not based in the UK. Was your father based in the UK, was Sally? If not then I don't really see how any of us can advise you. If your father and Sally were based in the UK then the case would proceed under UK law and what I have written above will apply.

@pickledcrumpet
I don't think the date of the onset diagnosis will be of relevance as at the time of signing he could have been deemed competent and without a medical professional there at that time stating he was or wasn't, its simply making assumptions about the progression of the akzheimers, which is not linear in fashion.

I think it’s the principle of it.

The idea that the OP somehow owes Sally because of the care she provided (once a week does not a carer make) sits very uncomfortably. If there was a genuine bequest in the will then that’s one thing, but to come out with a codicil years later claiming that Sally was indeed owed money is quite another and is virging on fraud.

That needs to be contested no matter how much Sally cared for the OP’s father.

Unfortunately financial abuse of the elderly is extremely common, and the fact that Sally A, wrote a codicil herself with no solicitor present, and B, refuses to allow the OP to see her father’s medical records does not point to Sally being a good and caring person.

A lawyer acquaintance of mine once told me “whenever a client tells me ‘it’s not about the money, it’s the principle’ I ask him for a twenty pound note and then set fire to it.” Yes it’s tough to think of Sally benefiting from fraud but a lot of lawyers have made a lot of money from people who stand by their principles. Mediation is an excellent suggestion.

When your parent signed The will and the codicil , both documents needed to be witnessed by 2 independent signatories. Their details should be by their signatures and Sally should know how to contact them. You can ask them about the tesators condition on that day.

If you contest the will , then Sally, as executor can defend it . IIRC she can engage legal advice as Executor and that expense will be charged to your parents estate. That might eat up most of the estate reducing the amount left for the beneficiaries. Quite apart from your own legal expenses, which will come out of your own pocket.

   Sally  took legal and practical  care  responsibility for your parent    for many years  so   I'm not surprised the grateful parent  marked their gratitude by leaving money to her and her children.

Another thought, do you have a copy of a previous will made by said parent before they had Alzheimers?

If not; this is something you can request to see.

If there a different will written and then the will was changed when Sally got involved and parent got unwell you would probably be better of going down the route of making the most recent will invalid.

@pickledcrumpet

The additional fees are much less than the value of Sally's portion. Sally's portion is also to be distributed to her two adult children (approx 20% per neice/nephew and 40% to Sally). My late parent hadn't seen them in years. Neither contacted me after his death with their condolences either!

You have mentioned you're not in the UK; so I'm wondering if the legal advice you're taking, is from a lawyer outside the UK who is unfamiliar with UK law regarding UK Wills, Executorship, and Power of Attorney. That might explain some confusions.

For a testator to leave money to children, managed by a named trustee until adulthood, is common; and I'm very surprised at your lawyers criticiam of it. When out children were small, in our Wills, the Executor was also their appointed Trustee. He was our lawyer.

Sally had Power of Attorney for your parents affairs in life; again this is a common provision in UK and very well regulated in UK law. Your parent had to have full mental capacity at the point they drew up the Power of Attorney. document.

seem to imply  the fact the will was downloaded and printed out  as a proforma; casYou ts doubt on its authenticity or validity.  In UK law   such formats  for  wills are widely available,  and   perfectly legal  so long as they are properly  signed, dated and witnessed. 

The fact Sally held POA, is itself an indication of just how much effort and responsibility she carried for organising your parents care and support in their last years.

@TeenMinusTests

Surely though you can have Alzheimer's but still have capacity for will signing.

You must know from your phone calls how 'with it' your DF was. Can you contact his GP as the N.o.K and ask about capacity?

I too am wondering whether it it worth the fight.
She was there on the ground when you couldn't be.

No, this is not possible. A power of attorney cannot be drawn up nor can a will once dementia is diagnosed.

You have mentioned you're not in the UK; so I'm wondering if the legal advice you're taking, is from a lawyer outside the UK who is unfamiliar with UK law regarding UK Wills, Executorship, and Power of Attorney. That might explain some confusions. For a testator to leave money to children, managed by a named trustee until adulthood, is common; and I'm very surprised at your lawyers criticiam of it. When out children were small, in our Wills, the Executor was also their appointed Trustee. He was our lawyer. Sally had Power of Attorney for your parents affairs in life; again this is a common provision in UK and very well regulated in UK law. Your parent had to have full mental capacity at the point they drew up the Power of Attorney. document. seem to imply the fact the will was downloaded and printed out as a proforma; casYou ts doubt on its authenticity or validity. In UK law such formats for wills are widely available, and perfectly legal so long as they are properly signed, dated and witnessed. The fact Sally held POA, is itself an indication of just how much effort and responsibility she carried for organising your parents care and support in their last years

Excellent post.

The fact Sally held POA, is itself an indication of just how much effort and responsibility she carried for organising your parents care and support in their last years.

No it really doesn't it just means that she managed to get Power of Attorney. The naivety of people over these matters is terrifying. Deputyship - where someone takes over someone's affairs after they've lost capacity without having a Power of Attorney in place - is very well regulated by the Court of Protection (although even this isn't perfect). Power of Attorney, however, is not that well regulated if you have a compliant solicitor involved who doesn't ask too many questions and doesn't know the client from Adam.

I would contest if you can be in time.

@Soontobe60 that isn't true. Capacity is decision and time specific, and you cannot assume that someone lacks the capacity to do something (including making a Will) without establishing it. A diagnosis by itself in no way stops someone making a Will or POA.

OP you need to be aware that it will be for you to prove your father lacked capacity at the time he made his Codicil. This might take a long time, and be expensive, and you may spend a lot of money and worry and still fail.

We are currently challenging a will at the moment.

In your case I would get hold of his medical records, as next of kin you should be able to do this. Power of attourney ends at death I believe and an executor only has control over the estate, not medical records. It used to be £50 to get copies. The codicil sounds very dodgy, but must be legal (as in signed, witnessed etc) or your solicitor would have picked this up. As the estate has already been distributed its quite difficult and you can't put a caveat on the will. Ask your solicitor to issue a letter of claim on the grounds the codicil was written at the time of the diagnosis and is therefore invalid. Once they have the letter of claim they have to stop distributing funds. Your case is much more complicated than ours :-(

For a testator to leave money to children, managed by a named trustee until adulthood, is common; and I'm very surprised at your lawyers criticiam of it. When out children were small, in our Wills, the Executor was also their appointed Trustee. He was our lawyer.*

From the OP, the lawyer did not criticise the will for leaving money in trust for the children. They expressed surprise that Sally would manage this money rather than the OP. In my experience, most people don't use professionals for this as they don't want their children's inheritance to be eaten up with fees. The lawyer's surprise seems to be that Sally has been appointed to manage the money rather than the OP. I would be surprised too.

seem to imply the fact the will was downloaded and printed out as a proforma; casYou ts doubt on its authenticity or validity. In UK law such formats for wills are widely available, and perfectly legal so long as they are properly signed, dated and witnessed.

Lawyers make plenty of money from wills like this. The lawyer said it was of very poor quality. Many such wills are indeed of very poor quality. And there is doubt in this case as to whether the OP's parent had capacity when it was signed. That is the basis on which the OP's lawyer is casting doubt on its validity.

The fact Sally held POA, is itself an indication of just how much effort and responsibility she carried for organising your parents care and support in their last years.

Complete rubbish. As a previous poster said, it simply means that the deceased gave Sally PoA. It does not mean anything more than that. She may have organised care and support for the OP's parent, but it is by no means guaranteed. It does not prove she put in any effort at all.

If Sally was purely interested in getting a part of the inheritance and manipulated your father to that aim, why the bother to be executor of your children inheritance? It doesn't make much sense, surely her I Teresa would have been to get her part and let you deal with your kids.

Also, as already stated, a diagnosis of Alzheimer's doesn't mean anything alone. Some people are diagnosed early when still in full capacity.

@dontdisturbmenow

If Sally was purely interested in getting a part of the inheritance and manipulated your father to that aim, why the bother to be executor of your children inheritance? It doesn't make much sense, surely her I Teresa would have been to get her part and let you deal with your kids.

Also, as already stated, a diagnosis of Alzheimer's doesn't mean anything alone. Some people are diagnosed early when still in full capacity.

Because some people are interested in money AND power. Some people assume power of attorney for unselfish, caring reasons, others assume it to get access to someone else's funds and to wield considerable power over that person and their family just because they can. By not taking the whole of the estate no doubt Sally felt the OP was less likely to challenge the will but she still felt she should be in control of the OP's father's funds albeit after they had passed to the OP's children.