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?

Apologies OP, I missed the fact the estate was already being distributed, that does mean that you can't put a caveat on the will and makes this all the more urgent.

I disagree with everyone who says you were abroad, and should be grateful. Sally has taken advantage.

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.

Missed this paragraph.

To say PoA is "well regulated" is a joke. If I want to appoint the woman who lives next door as my attorney, I complete the forms and send them to the Office of the Public Guardian. They will write to her to check she is willing to act. If she is, the documentation will be issued. If she then uses her position to defraud me when I am incapacitated, she will only face consequences if someone realises she is defrauding me and reports it. There is no system of regulation in place to detect fraud.

The OP came here for legal advice. I fail to see how people guessing and posting incorrect information helps. Similarly, describing a post as "excellent" when it is in fact full of errors may lead to the OP placing undue reliance on it.

you need to be aware that it will be for you to prove your father lacked capacity

If a solicitor had been involved they would, if possible, have ensured that the OP's father was examined by a medical professional prior to making the codicil to establish that they had testamentary capacity. In the absence of that, it is easier for the OP to argue that her father did not have capacity. However, you are right that she would have to show that, on the balance of probabilities, her father lacked testamentary capacity.

Sally isn’t entitled to anything. It was her choice to help your father. Should caring duties only be done with a promise of money at the end?

I would definitely contest the will without a doubt. The whole thing stinks to high heaven.

Well she is entitled to anything left to her in the will surely! That's the point.

@OverTheRainbow88

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.

Sally also organised the first and original Will. This was dated two years before he died. It was downloaded from an online template. She was not a beneficiary. I believe he already had a diagnosis of Alzheimer's when this was signed. My lawyer suggested I contest this prior to us even sighting the codicil. Getting information from her has been like getting blood from a stone. So much secrecy.

I wouldn't do anything until I had gotten hold of medical documents. Until then it's all speculation about Sally.
Sally might be refusing to hand over medical documents because she doesn't have them.
If you cannot request these directly then I would be using a lawyer to request them from the NHS

Alzheimer’s is not a quick thing - it’s very likely your dad had it before he signed the codicil. I think on the info you’ve given here you could have a good case if you challenged. Of course you should take proper legal advice.

So sorry for your loss op.

you don't need her permission to access your parents medical records. Once someone is deceased you can Approach hospital / GP directly with a formal request for information about when Alzheimer's was diagnosed.

@Mistressofmany

Well she is entitled to anything left to her in the will surely! That's the point.

Yes. The Will and Codicil are valid unless proved otherwise. If that doesn't happen, then she is entitled.

@rbe78

Alternative viewpoint - Sally undertook responsibilty to look after a relative whose child was not willing/able to do so themselves. It's not easy caring for someone with Alzheimers, so it was a big thing to take on, especially for someone who was not her parent. Perhaps your father recognised this and wanted to thank her. Presumably you are very grateful to Sally as well - will you be in dire financial straits without the remaining third of the estate?

I agree with this. Also, if your relative had had to go into care the inheritance would have no doubt reduced by 1/3?

Even after a dementia diagnosis he could have capacity. You have to assess capacity constantly and it will vary. Most people who have done alot of care with dementia patients will tell you capacity comes and goes.

I know someone who fought about a will for years, it was a very large amount of money and at the end of the day the fight ended when there was no money left. You weren't there to care for your father, Sally stepped in, I think you need to respect the will.

She can't prohibit you from seeing his medical records. She won't have them. She may have letters but not notes.

@finished31

I think Sally has been deceitful and played on you Dad's vulnerability. Only you know Sally!

I would go with my gut here especially as he was diagnosed with Alzheimer's and a will was written.

Sorry about the loss of your Dad.

I agree with this 100%.

[quote thecognoscenti]@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. [/quote]
Absolutely correct.

I can see this only benefitting the solicitors and no one else. It will
Leave a far bitter taste in your mouth than you already have. Sally stepped in where you couldn’t or wouldn’t. Dementia car is something I wouldn’t want anyone to do, but sadly there is a need. Your father could well have been able to make a fantastic effort in order to conceal the worst of his illness when you were there. I know my mil did and managed to convince her daughters in their small visits, that she was 100% ok, when she was in reality, very ill.
Had she not stepped in, the costs of care homes, the effort of dealing with social services and attempting to get deputyship - could have been far higher than what you perceive yourself to have now missed out on.
But, it is up to you.

People are just making stuff up now. The OP says Sally did not step in and do loads of physical caring and even if she did it doesn't mean she should coerce a vulnerable old man into changing his will to benefit her without even visiting a solicitor.

I've already said I challenged a will successfully, it is not impossible but it takes funds, perseverance and determination - it also needs enough of a case to make it possible. The OP has enough of a case to at least get to mediation, believe me.

I challenged on want of knowledge and approval, you don't always have to prove full mental capacity if there are dodgy circumstances surrounding the execution of the will. You just have to prove something was wrong with the testator and that the circumstances in which the will was made could excite the suspicions of the court.

Sally took advantage of someone who wasn’t in their right mind! I would without a doubt be contesting this OP. It’s not even about the money it’s the principle.

Hard to believe but there are people who make a habit of befriending elderly vulnerable people. My ILs cleaner had already fleeced one family who took her to court before she moved onto my ILs. They are very manipulative. Thankfully my FIL was not stupid but she still walked away with a lump sum from the will and tried very hard to alienate the son from his parents.

thecognoscenti
@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.
Absolutely correct.*

Actually I don’t think the MCA applies to wills currently (I believe there is a live case on this ver point) so the burden is on the person who says that the will is valid to prove that the testator had capacity in circumstances where this is in doubt; there isn’t a presumption of capacity. I would say that you’d need fairly robust evidence, ideally a medical practitioner or failing that a lawyer who saw the testator independently, to prove that a codicil made 3 months before someone died of Alzheimer’s is valid.

@JSL52

She can't prohibit you from seeing his medical records. She won't have them. She may have letters but not notes.

I'm not sure why but my solicitor has asked her for permission and she has declined.

@FourWordsImMuNiTy

Imagine there was no dodgy codicil.

Imagine that your DF before his death and incapacity had said to you “Sally has done a lot for me over the last couple of years. Do you think I should recognise her in my will? And if so how much?” What would you have replied? What’s the difference between the amount you would have suggested and the sum she’d receive from the codicil?

Bearing in mind that figure, and your court costs, make her an offer of somewhere between 5% and 33% otherwise you’ll take her to court (you don’t actually have to take her to court if she refuses, but it should focus her mind).

This is very wise.

I'm not sure why but my solicitor has asked her for permission and she has declined.

But you’re his NoK so you can apply (unless being out of the country makes that problematic, in which case your solicitor can do it for you). Also any records Sally has will ultimately be disclosable if you litigate.

In Your initial post you state Sally helped a lot, and then minimise her support to your parents in further updates. She had more to do with, did more physically to help than you have for many years. Is it not quite probable your parents did want to recognise this?

Is there specific reason to believe your father would not have wanted to compensate Sally for her years of care?