Update On Will Dispute

[jaycee401]

So after waiting several months for the other side to seek counsel advice in a will dispute, they are trying to have overturned. We have received a copy of a psychiatric report they have obtained. If we don't agree to their offer then they say the next step is mediation. Our solicitor is getting a bit angry t us saying we should mediate and loose the attitude that 'its not what dad wanted'! So, some random physchiartrist giving his impression of whether dad had capacity, going on about how ill dad was and the meds he was taking could cause confusion, and the pain he was in. He is basically saying "on the balance of probabilities the info and medical notes he has seen is not sufficient to overturn this presumption of capacity at the time the deceased executed the will, given a presumption of capacity in y opinion it is more likely than not he had the capacity to execute the will. I understand that if the circumstances under which the will was drawn up are such as to excite suspicion, the
burden of proof of capacity may shift onto the propounder of the will to show the testator had capacity (capeto v good 2002). In this case there are good medical reasons to consider that the capacity of the testator might have been undermined by pain, anxiety depression and the pain of drugs. Just as I consider the notes do not contain sufficient info to establish that the testator lacked capacity neither do i think that they establish he had capacity"!!

He also thinks that as he was ill he would of felt under pressure and obliged to go give us the gifted sum!

We need some solid advice please, are we best letting it go to court or do we reluctantly try and mediate. This guy will not be happy until he gets it all, so mediation could be difficult!

[factor-fiction]

I'm struggling to follow what you are saying and your post seems to be clouded with your emotions (understandably). I'd take your solicitors advice seriously. If you disagree with the solicitor then you could sack him and get another but it's a very risky strategy.

[jaycee401]

Sorry for waffling on. In short the contester to a will has sought independent advice from a psychiatrist, someone who had never met the deceased but has given his evidence by looking through the deceased medical notes. He basically says that in his opinion and on the balance of probabilities the will was properly executed, but if the court accepted there was suspicious circumstances in the making of the will then it would fail through lack of knowledge and approval, and so the burden of proof would then be passed on to me to prove the deceased did have capacity to make the will.

[themas]

To me the extract you quote reads like someone bending over backwards to satisfy the client who is paying his/her bill. In other words he/she accepts the will is valid but doesn't want to do anything to leave the client without some vestige of hope.

However, that doesn't really help you in making your decision. If you go to mediation is the outcome binding? If not, have you much to lose by doing it? Have you got anything from whoever drafted the will & from the witnesses? Their input would be vital to any mediation.

Your opponent is saying the next stage is mediation if you don't accept their offer - I assume there is no question of you accepting whatever that offer is. Why do they imply mediation is required? Is it a necessary pre-requisite for the case going to Court? Your solicitor must be able to tell you this. If it is, then you've no alternative but to do it - making it quite clear it is not to be binding.

[jaycee401]

Thanks themas, the mediation is not binding, solicitor said if an outcome cannot be reached, then the next stage would be court. His offer was for everything to be given to him bar £10k, i.e house valued at approx. £140k and around £50k in monies. We have a Lark v Nugus statement from the solicitor who wrote the will, we have a letter the deceased put with the will why he was leaving him out of it, we have witness statements from friends of the deceased and the nurse who looked after him at the care home and the care home manager, all say in their opinion the deceased was of sound mind up until hours from his death he was a strong willed character who knew what he wanted and would not be coerced into doing anything he did not want to do. Our solicitor said if we didn't go to mediation even if we won in court it would be looked upon more favourably in court especially for costs awarded. So we will go to mediation but I just wondered if this psychiatric report would be detrimental to our case. It now seems reading between the lines they know they don't have a chance of having the will revoked on the grounds of capacity and coercion o they are going down the route of want and knowledge so it would be down to us to have the burden of proving the deceased did have capacity and was not coerced.

[Peter Pedant]

Mediation is part of the normal court process innit ?

Try it and see - I am pretty sure the rules say you dont HAVE to come to a mediated conclusion, but CPR is now pretty keen on it

I am at this stage for a much smaller sum in debt ( 1K) and thought I would gtry it and see

Basically you want us to say what is in claimants mind besides "Money" and we dont know....

[murraymints]

Sounds like he's clutching at straws...evidence is stacked against him..I'd go to mediation, point that out ..offer him a wee bit to go away and mention that he'll most likely end up paying costs ..yours too !

[kvalidir]

Go to mediation, you have nothing to lose and everything to gain. I assume the mediation will break down pretty quickly and you will then go to court. This is fine. The fact you went makes you look reasonable and level headed and will encourage the court to award costs in your favour to a fuller capacity. You sound as if you have a lot of evidence to back you up vs one psychiatric report made by someone who had never met the deceased, which to me seems pretty strong odds, however I'm not a legal, so if you have faith in your solicitor listen to him, if you don't then get a better one, but changing solicitors is costly and gives the opposition a heads up that something is wrong, so think carefully before you do.

[jaycee401]

Thanks so much for the replies. We will go to mediation and keep the same solicitors. Thanks.

[factor-fiction]

Good luck. I think you are doing the right thing.

[jaycee401]

Thanks ff, just one last thing, do we make a reasonable offer prior to mediation, even though he wont accept it or do we just hang on and wait for mediation? Just to give a glimpse of what we are taking about, house worth around £160k and monies to the value of approx. £50k.

[black_cat51]

what do you consider a reasonable offer in those circumstances?

[jaycee401]

We have previously made an offer of 15% of both which was refused. 25 - 75 in our favour?

[themas]

You should get your solicitor's advice on this. If you do do it it MUST be a "Without Prejudice" offer so he can't raise it when you get to Court - I'm not sure whether he could raise it in the mediation or what effect it would have on that.

[jaycee401]

Thanks themas

[jaycee401]

sol advised not to bother making a further offer at this stage. We have now booked for mediation for the 11 September, ooh any advice on what we can arm ourselves with would be much appreciated! does anyone know if we were to agree a certain % split on both monies and property, rather than be associated with the contester and have a financial link with him could we state we would only agree to him having a % of the house if he bought us out of our share? As he is retired I doubt he would get a mortgage to finance it though. But he could use his % of the monies he gets to 'pay us off'. Hope this makes sense!

[factor-fiction]

It's probably best to ask your solicitor about that

[tamborine]

Mediation is the normal procedure prior to Court, if the dispute remains unresolved. If the Will was drawn up by a qualified solicitor, capacity would have been sought before signing the Will; the judge might check your solicitor's competence in this respect.

n.b. for mediation. Court costs estimate £25k+ ime. Loser pays costs. I think your 15% (£10k) offer is generous IF you are confident of the solicitor that drew up the Will. Your could warn the contestor of costs he could suffer if he loses in Court. Good luck, let us know how it goes.

[jaycee401]

Thanks guys. I will keep you posted. We are confident the solicitor who undertook the will did everything right, maybe he should have appointed dads doctor to witness him signing the will (golden rule) but to be honest I don't think he suggested this as he new dad was fully aware of what he was doing! In the contesters last solicitors letter to us they warned us of the costs we could suffer if we lost. It will be very interesting on the 11th!! We also have proof (without going into detail) that the informant who told the contester what the new will said and gave him some of dads medical notes was taking money from the deceased bank account (before he had died) and was depositing it into an account he had opened (same branch), with us being power of attorney we saw the transactions on the bank statement and made this person but it back, because we did this he went and fed the contester many many lies!

[jaycee401]

If mediation does not solve the issue, would it be down to the contester to issue court proceedings rather than us?

[tamborine]

yes, the contestor issues proceedings IF he wants to take it further. There is a time limit of 3months from mediation.