Caveat Warning Appearance

[jaycee401]

There is a dispute of a Will. Caveat was placed at probate and warning given. An appearance has just been placed. So the next steps I presume will be court. In between all this the solicitor who made the Will was sent a Larke V Nugus questionnaire to complete which she did.
As there has now been an appearance does this mean that they found something ‘unusual’ in the response from the solicitors replies to the Larke V Nugus or could it mean because there was an appearance then the caveat has some grounds.
Our solicitor was adamant the Will was prepared correctly, witnessed and the persons who was making the will was of sound mind, knew exactly what he was doing and there was no undue influence.
If the next step is court who would start the proceedings, us or the caveator? Could we also ask for costs from the caveator?
What reason would the caveator have been able to give as he was not financially dependant. The caveator is in fact the blood son of the deceased person who had nothing to do with him for the past 15 plus years. A previous will leaving everything to this blood son in 1990 has now obviously been squashed with this new will, but there is also a statement from the maker stating why he was leaving nothing to his estranged son.

[jaycee401]

Regardless of my case. That is terrible, makes a mockery of making a will.

[FredPuli43]

Well, jaycee, if your ever a housekeeper for an old man, don't copy his existing will word for word but strike out his niece's name on every specific bequest (houses etc), have it executed when he is a death's door, and then claim that he disliked his niece so much then that he deprived her of her inheritance. Well, I say that. If you do that copying, don't leave the words "residue [meaning anything left over] to my niece" in it. Someone wondered why, if the uncle disliked his niece so much, he left the residue in stocks, shares, and deposits, to a value of three times what he left to the housekeeper, to the niece. :-)

[jaycee401]

I can appreciate that. But when a will is proven 100% genuine the testators wishesshould be respected. I would hate to think someone could challenge my will when i have died.

[Peter Pedant]

Hi boys - when do costs come from the estate ?

I thought Mausner v Mincher was the exception as a result of unreasonable behaviour. Costs from the estate does mean that anyone can have a pop.

[jaycee401]

Ive just done a bit of googling seems like if you go down the inheritance act route and are successful then costs fir both sides come out of the estate. I think i will draw my mobey out of the bank and put it under the floorboards! A bit of a p$$$ take in making a will if you ask me. Makes my blood boil to think he never had anything to do with his father for years, the last tine over 15 years ago when he turned up at hospital thinking he was dying as he had a heart attack, when we new he had survived it, we never saw him again! But now his money suddenly looks inviting. He sent him some nasty letters just weeks before step dad in law died threatening if he wasn't cut in on the will he would cause problems!!! He wasn't kidding!!!

[FredPuli43]

Well, any letter like that suggests both motive and malice. If you write a letter saying that unless you are a beneficiary you will cause trouble, the nicest reading is that you know that the testator is minded not to make you one. Now, if the testator is of testamentary capacity, he will not read that as evidence of a fear of undue influence. He will read that as spite. This doesn't help you. If he then goes ahead and leaves you out of the will, the other side will say you made his mind up, and no wonder he wrote the will he did. That suggests a clear mind and no undue influence.

[boxtops]

Do you still have those letters?

[jaycee401]

Our solicitors have them. Althouth dad did see the first one. The other 2 we warned the home not to give them him but to keep them for us as he was very poorly and the one distressed him and he was very agitated. So we passed them on to the solicitor. They were written without prejudice, although this was spelt wrong.

[FredPuli43]

That's a new one, jaycee. Never heard of "without prejudice" as a defence to blackmail ! It doesn't work; the definition includes words that mean that the victim will fear that the threat will be carried out, and putting without prejudice with it, whilst it suggests sick humour, does not alter that.

[jaycee401]

Thanks Fred. This is the outcome as of today: Caveat remains as he is disputing the validity of the will and that he has an interest in the estate under the previous will dated 1999.

It doesn't say what his query is with the validity. so our solicitor has written to his asking what he hopes to gain from the dispute and what grounds. She has also informed them we will be seeking costs if it goes further. When she hears back she will then make an application for a summons before a District Judge.

[jaycee401]

Received a long long letter today, basically they are going for undue influence and coercion. They say they have obtained medical records which tell them the deceased was not a well man prior to signing the will, he was on strong drugs whose sides effects include confusion, disorientation and mood swings, and the will solicitor should have sought a doctors opinion before writing the will. The LvN statement does not appear to be correct and that both me and my husband were in the room when the will was signed by the deceased! Utter rubbish!!! No file notes by the solicitor of the execution of the time of writing the will. They also go on about a cash sum of money the deceased gave as a gift to my husband (they have this wrong as they keep saying the cheque was made out to me). They believe we influenced him and want a copy of the cheque. They state the presumption of undue influence arises as a relationship of trust and confidence that existed between my husband and the deceased at time of transfer. They say my husband was subject to a police investigation regarding his conduct in relation to the cremation and that he never knew of his fathers death until weeks after his father had died! He knew on the day as the nursing home told him!! Yes we never told him when the cremation was as the deceased wishes were no one was to know so no trouble would kick off, even WE did not know!!
They also go on about dad in laws car whilst he was in nursing home that we asked him twice to transfer the car to us and this was rejected twice until eventually he did!
The private pension has gone direct to mum in law when part of it should have gone to the son. This we know nothing about. All my husband did was advice the company of his death and they took it from there. Yes MIL is receiving his pension.
Their client has now been advised to seek to commence a claim to challenge the last will and reinstate the old one. In order to avoid issuing proceedings we are to return half the gifted money, we can keep the other half and our legal costs can come out of the estate!
They are saying a major difference between the 2 wills – WHICH I agree!
They are stating dad in law received no legal advice regarding the cash transfer, total rubbish as he asked the solicitor if he could do this. The sum was for £50k and they are saying this is a sizeable part of the estate.
They go on to say around this time he was given 3 weeks to live, yes he was and then 3 days, all diagnosed by a locum after a fall. He last a further 10 months!
He did suffer a fall around late September 2012 and was admitted to hospital he went to a nursing home to live around October 2012, where he remained until he died.
When the solicitor came to undertake the will, dad in law asked my husband to contact his son and asked him to go and see him, before the will was executed, and the solicitor said I will ring you in a week and see if you have managed to make contact. Eventually nearly a week later my husband got hold of him and had a long telephone conversation (about an hour) explaining what was up with his dad and saying his dad wants him to go and see him and he was in the process of making a new will. He refused point blank saying too much water has gone under the bridge. In the meantime dad in law asked the solicitor to give him a few more days before coming back just in case the son made contact. He never did.

First will dated around 1990
Last will dated 30 July 2012
Died June 2013
Facts: Father in law was diagnosed with cancer around June 2011
Cash transfer around 5 August 2012
Because the son made a complaint to the crematorium the police had to get involved as it was deemed as suspicious. The undertaker had a visit from the police asking the circumstances of the cremation, when he explained whats what to the police they left saying everything was in order, this took less than 30 seconds! They never came to see my husband!
My main concern is the gifted money he gave us as dad in