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Stuart J
Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 22442
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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I have just seen my father's new Will, written when he was

Customer Question

Hi. I have just seen my father's new Will, written when he was competent and again naming me and my stepsister as Executors.Our family consists of myself, his son, and my two sons, his step daughter and her two sons, his step son and his other son and his two daughters from whom he is estranged.In the new Will he has excluded my brother, his younger son, and family. He has left two thirds of the estate to his step daughter to include his step son who has a learning disability and for her to manage his step sons inheritance. He has left a substantially sum to his four grandchildren, excluding his younger son's grandchildren.Essentially, his younger son, my brother, stated about 20 years ago that he wanted nothing to do with his father. His children aged around about 8 and 10, wrote to say that they never wanted to see their Grandfather again (unlikely they were not prompted by their parents??). After years of pain, my father changed his will.I write as one executor, with my step sister, of the Will and my initial understanding is the he has no right in Law to disinherit.
My brother can therefore challenge the Will, if he choses to and is likely to succeed. Is that so and could he also claim the same inheritance for his children, my father's grandchildren was has been Willed to the others?
I am also concerned about the arrangements for my father's step son who has a learning disability. He is entitled to inherit but, if there is any money left, he will lose his benefits. Perhaps that is why he has not been named.
At the end of the day, its likely there will be little left after Care Home fees but I would appreciate a guide.
I am also concerned as to why, if he was not legally able to disinherit, why he may not have been advised of such by the Solicitor who draw up the Will?
Thanks for your advice.Bob Chard
Submitted: 12 days ago.
Category: UK Law
Expert:  Stuart J replied 12 days ago.

Your late father would have been well advised to leave a small something in the will to those children who he was no longer speaking to rather than leave them out altogether. If he was adamant he wanted to leave them out altogether, then he should have prepared a letter of wishes which explained that he knew exactly what he was doing and he simply did not want his estranged children to have anything. We don’t know what happened between the solicitor and the father and probably never will.

it’s probably not worth pursuing the line.

It can be challenged but challenges like this are not cheap.

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.now you.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 £6 pounds.

http://www.justice.gov.uk/courts/probate/copies-of-grants-wills

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.

Can I answer any points arising from this?

Please don’t forget to use the rating service to rate my answer positively. If you don’t rate it positively, I don’t get any credit from my time today.

However even after rating, the thread does remain open and if anything else need clarification, we can still exchange emails.

Kind regards.

Stuart.

Customer: replied 12 days ago.
Thanks. I suspect I am up against the power of the solicitor's profession? Since my last email, I have found that the company which wrote his Will went out of business. They were taken on by another Company who went out of business. The Company now concerned have the records but protest that they are only a storage facility! The named Solicitor who signed the Will is known to the last Company but he is retired. So no-one has responsibility? I guess you will say forget it but I am strongly convinced that my father was not advised properly when he took out his Will and that he should have been told that he cannot, without writing a statement as to why, disinherit his son and his step son. Were that to have been discussed and dismissed by my father, then I might have expected the Solicitor to have told him he can't do that and refused to sign the Will as an adequate in Law document?
Expert:  Stuart J replied 12 days ago.

For some reason, will writing businesses seem to be going out of business all the time. It doesn’t invalidate the will of course. If you only have a copy of the signed will, then it would need an application to court to admit the signed copy. If you only have an unsigned copy, that would not be admitted. He may not have been advised properly when he wrote the will but of the company ha’s gone bust, there is nothing to be done.

However I don’t know if you’re referring to a firm of solicitors going out of business or a will writing business. If it’s a will writing business, You cannot sue in negligence a company which has been liquidated/dissolved.

If it is a firm of solicitors, the file will be with the new firm who will have taken over from the firm that have closed although if was written more than 6 years ago, they may not have the file any more because it could well have been destroyed