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Joanne M
Joanne M, Solicitor
Category: UK Law
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Experience:  LLB (Hons), LPC
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Whats can be done in the following probate application stalemate? U.K

Resolved Question:

What’s can be done in the following probate application stalemate?
U.K PROBATE LAW
1. Our father passed away.
2. The family (6 siblings) applied for intestate probate.
3. A short time later our sister applied for testate (with a will) probate. We didn’t know a will existed. In the alleged will our father left his entire estate, worth £350,000, to our sister (there are 7 siblings). Our sister is also the executor.
4. Because there are two probate applications in the same estate the estate’s probate process stalled. The estate’s probate application process cannot proceed if one of the two probate applications is not withdrawn.
5. We tried over and over to meet our sister to discuss the stalled probate application. She has refused to meet us. She has not acknowledged any of our letters.
6. We cannot afford expensive solicitors’ fees or mediation fees. We simply would like to meet our sister informally to discuss her probate application. What can we do (that does not involve expensive court action) to force our sister to meet us to discuss the will and her testate probate application.
Submitted: 10 months ago.
Category: UK Law
Expert:  Joanne M replied 10 months ago.
Hello.

Do you know if this will is genuine?
Customer: replied 10 months ago.

The will could not be genuine.


Our father was in his deathbed when it was written.


My sister had arranged for WILL WRITERS to visit him in his deathbed. She did not tell anyone that she had contacted a will writing firm.


She did not tell anyone that will writers would be visiting our father in his deathbed.


When our father died she did not tell anyone that there was a will.


She did not apply for probate straight away.


She only applied for probate when we applied, and she learned that we had applied.


We would like to avoid expensive litigation.


I am just wondering: Are there affordable steps that we can take to force our sister to meet us to discuss the estate's stalled probate process.


The trouble is both our sister's testate probate application and our intestate probate application have stalled. They will not become un-stalled if our sister and us don't meet and discuss the issues.


We would just like our sister to simply agree to meet us, and simply agree to have calm and civilised discussion.


I approached a mediation firm. Their fees are very high (a minimum of £2000 each party).


Is is possible to take court action simply on the grounds that our sister has refused to meet us to discuss the stalled probate applications?

Expert:  Joanne M replied 10 months ago.

thank you for the the extra information. Did your father have an early will and if so, what was in it?

 

There is no magic way of making her see sense and at this stage, as the situation is stalled, you might want to be the one who refuses to talk to her and basically, call her bluff.

However if you don’t want to do that, you might want to get a solicitor to threaten litigation even if you ultimately do not proceed that far. You may get a solicitor to deal with this no-win no fee but you may have to do ring around the few firms first.

Wills and estate admin can be contested on various grounds

1
If a person doesn’t provide for dependents, children incl adopted children of all ages and a spouse (but not step children unless they have been treated as the deceased’s own children) in a will it can contested by making a claim under the THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975.

Details are here

http://www.rollingsons.co.uk/The-Inheritance-Provision-for-Family-and-Dependants-Act-1975.shtml

and here

http://www.disputed-will.co.uk/news/?p=1

 

2
Undue influence if it is thought that the person making the will had been “got at" when drafting the will.

3
Or if, when drafting the will the person lacked mental capacity/didn’t know what he/she was doing

4
Fraud

There are strict time limits for contesting will under 1 above of 6 months from death.

Claims under 2 or 3 above 12 months.

Claims under 4, no time limit.

http://www.probate.uk.com/how_long_contest_will.html

5

Promissory Estoppell. This is a technical legal doctrine not used very often. It says that if anyone has been promised something during the lifetime of a person and they relied on that promise to their detriment then they are entitled to have whatever was promised. The classic case is indeed the young man on the farm, who is told by the old man “don’t go off to seek your fortune son, but stick with me and work on the farm and I will leave it to you when I die,”.

So the young man doesn’t go off to seek his fortune and stays and works on the farm and it turns out that when the old man dies he leaves everything in his estate to the prize cow, Daisy or his new girlfriend, who is 30 years younger than he is. In that case, the young man having given up a future (to his detriment) on the basis that one day (he was promised) the farm would be his and he believed it and relied on it, he can get a court order that the farm is transferred to him. Such claims are not cheap or quick to bring in do require a large burden of proof of the promise and reliance to detriment.

 

Anyone can get a copy of a will once it has been admitted to probate from HM probate registry, upon the payment of five pounds.

Anyone can also hold up the granting of probate by entering a caveat at the probate registry. At least, they will then find out if there is a will. The entering of a caveat will certainly wake up any executors. Some explanatory details are here;

http://www.anthonygold.co.uk/site/ang_articles/ang_articles_filing_a_caveat_first_step_in_contesting_a_will

If there is no will the estate is distributed under terms of the rules of intestacy

http://www.adviceguide.org.uk/england/relationships_e/relationships_death_and_wills_e/who_can_inherit_if_there_is_no_will___the_rules_of_intestacy.htm

 

A person can register a standing search at the probate registry, which must be renewed every six months and it will tell them if anyone applies for probate. When they do, they can then apply for a caveat.

 

If anyone is considering litigating the matter on any of the grounds above, they can make an application to court for pre-action disclosure of the will and can ask the court to award costs against the executor. If the application fails, costs can be awarded against the applicant.

So you can see that you probably have grounds to contest the will on 1, 2, and 3.

If the will had been drafted and executed by a solicitor and it had not been arranged by your sister, then it would severely harm any claim that you may bring but as it is, I do not think that your sister is on very good grounds to get the current will admitted to probate, particularly if the previous will was grossly different and left everything almost equally between the children.

Remember that if this does litigate, and your sister loses, the legal costs will be deducted from her share of the estate and she could therefore end up with virtually nothing by the time the legal costs are paid.

There are six siblings who may be entitled to benefit and £1000 paid by each, will provide a substantial chunk of money to get a barrister’s advice. I would not waste a lot of time with solicitors correspondence.

There is simply no in expensive non-legal stick which is free of charge, you can beat your sister with to make her respond to your letters or meet you

Does that answer the question? Can I assist further?

Customer: replied 10 months ago.

Thank you.

Expert:  Joanne M replied 10 months ago.
I am glad to help.incidentally, please ignore all the underlining because the formatting has appeared for some strange reason. It is not meant to highlight anything. I can't remove it unfortunately.
Joanne M, Solicitor
Category: UK Law
Satisfied Customers: 264
Experience: LLB (Hons), LPC
Joanne M and 4 other UK Law Specialists are ready to help you
Customer: replied 10 months ago.

Can our sister legally live in the house (the decease's estate) or rent it out without obtaining the required probate authorisation?


 


(Continuation of earlier enquiry (probate question).


 


I am aware that she cannot sell the house without first having obtained probate.


 


Can she however rent it out or live in it?


 


She holds the keys to the house and does not permit any other family member, who also held keys before she changed the locks upon the death of our father, to visit.


 


Is it lawful that she is not allowing any other family member to visit the house (the former family home before the death of our parents)?


 


What action can we take against our sister that would allow us to visit the former family home?

Expert:  Joanne M replied 10 months ago.
At the moment she thinks she is the sole beneficiary of the estate and if she was indeed the sole beneficiary, she would be entitled to rent the property and take the rental. She is under a duty to act in the best interest of the beneficiaries in the will and ultimately, if the will is overturned, she is going to have to return all the rental incomes to the estate
the same applies if she lives in it, if the will is overturned, she is liable for occupational rent for the period that she has been in occupation, and must pay up to the estate
At present, until the will is overturned, it is the most recent document and she is entitled to exclude you from the house.
You can of course threaten an application against her personally, but to be honest, until the issue of the will is resolved, I don’t think that a court would make an order allowing you all into the property
Joanne M, Solicitor
Category: UK Law
Satisfied Customers: 264
Experience: LLB (Hons), LPC
Joanne M and 4 other UK Law Specialists are ready to help you

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