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  1. #1
    magenta's Avatar

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    Default Permanent Caveat

    Looking for guidance



    I am an executor to a will that has a permanent caveat placed on the will due to concerns of dementia. The judge has stated that the solicitors that drafted the will should disclose their file to both parties to end the situation.


    Now the caveators solicitors is stating that they are going to add to the claim further to the dementia, undue influence and claim under the inheritance act if the will stands.


    The caveator asked for a larke and negus from the solicitors then queried the answers with more questions. This was over a year ago and it appears the solicitor that drafted the will for the deceased have defended it quite rigorously stating their was nothing of concern. We have asked for the caveator to provide the second set of question and answers but they have stated that they have no further comments to make. Although we now have a copy from the solicitor that drafted the will.


    So my 1st question is can a caveat be added on to once it is permanent ie it is for dementia only

    but now they are claiming dementia or undue influence if that does not stand inheritance act.

    They have asked for the estate figures which they were provided even though the will has not gone through probate.

    2nd Can I demand that they document their evidence to progress the claim.

    Any help would be appreciated.

  2. #2
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    Default Re: Permanent Caveat

    Hi and welcome.

    It seems to me that solicitors having been involved, the dispute has taken on a life of its own.
    The more solicitors are involved, the less estate will be left for distribution to beneficiaries.

    So a caveat was lodged, you issued a warning to whih an appearance was lodged.
    It can only now be removed by consent of the court.
    Has mediation been attempted?
    Come to an agreement wth the caveator, and gain court's consent ....... quicker and cheaper than court.

    Had the testator been diagnosed with dementia of sufficient severity to cause him lack sufficient testamentary capacity ?
    If testator was suffering from dementia, it would not be unusual for a challenge to a will to include "undue influence".

    Presumably the caveator feels he has been dealt with unfairly by the will.

    More info might glean more comments, but you are being guided by a solicitor versed in contentious probate?

  3. #3
    magenta's Avatar

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    Default Re: Permanent Caveat

    Hi Des8

    Thank you for your reply, testator had been diagnosed with early to mild dementia.

    I have a statement from his dementia doctor and he states that there is no reason why he could not have made the will. He has also stated that he witnessed no undue influence regarding the person being accused.

    As mentioned previously the solicitor that drafted the will has gone to great lengths to clarify that he was capable of making such a will and clarifying that no undue influence was involved.

    Thats why I was asking should I ask them to document their case? As his caveat had been answered which the Judge instructed to be done.

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    Default Re: Permanent Caveat

    Quote Originally Posted by magenta View Post
    Hi Des8

    Thank you for your reply, testator had been diagnosed with early to mild dementia.

    I have a statement from his dementia doctor and he states that there is no reason why he could not have made the will. He has also stated that he witnessed no undue influence regarding the person being accused.

    As mentioned previously the solicitor that drafted the will has gone to great lengths to clarify that he was capable of making such a will and clarifying that no undue influence was involved.

    Thats why I was asking should I ask them to document their case? As his caveat had been answered which the Judge instructed to be done.
    It's not the doctor's view of dementia it's the court's view of mental capacity based on Wills' law, ie the capacity tests. The question is, was the person who was affected by dementia incapacitated to the extent that his Will was not valid. What evidence did the caveat lawyer have for challenging the Will either by capacity or 'undue influence.' For Will's there's a different standard than the usual undue influence, ie it's different from contract cases I believe.

  5. #5
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    Default Re: Permanent Caveat

    As an appearance has been lodged, you need the court's agreement to have it removed.
    If you can't come to an agreement with the other side, you will need to start court proceedings against the caveator to remove it.

  6. #6
    magenta's Avatar

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    Default Estate Accounts

    Hi All,

    Looking for some advise please. I am an executor of a will that is being contested by a previous will. Which I might add is not signed, dated or witnessed and has numerious errors on. They are not mentioned in the will that I am executor off but are asking for estate accounts. My question is am I legally bound to show them the estate accounts if they are not mentioned in my will, I did forward them the paperwork that was sent to probate, but I do not feel as if I should show them anything else.

    Where do I stand?

    Hoping for someone can help.

    Magenta

  7. #7
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    Default Re: Estate Accounts

    @Peridot ... one for you??
    Debt is like any other trap, easy enough to get into, but hard enough to get out of.

    It doesn't matter where your journey begins, so long as you begin it...

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  8. #8
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    Default Re: Estate Accounts

    If the will that is in your possession is the latest and full compliant with the requirements then you can tell them go whistle. If they are not mentioned then they can have no interest in the estate,

  9. #9
    magenta's Avatar

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    Default Re: Estate Accounts

    Hi thank you for replies, they do have a premenant caveat. Do you think this would make any difference as they are asking for his bank statements as well.
    They are also asking me to go and get medical records for them?

    magenta

  10. #10
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    Default Re: Estate Accounts

    If they want medical records, it is for them to apply in writing to the record holder under the Access to Health Records Act (1990).

    You don't have to provide bank statements to anyone.

    Do you know why they have lodged a caveat, and if they have good grounds for contesting the will?
    Are they employing a solicitor?

  11. #11
    magenta's Avatar

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    Default Re: Estate Accounts

    Hi Des8

    They have already obtain the medical records from the hospital, via their solicitors. The caveat now permanent due to dementia query? However this was in 2014 and now we have discovered that the brain scan is clear. This week they have now asked us to provide GP records. We have statements from doctors and the solicitor who draw up the original will carried out. Stating that he was clear and coherant in 2012 when will executed. They requested a Larke v nugus from the solicitor of the will which we have from the solicitor and were not happy with that. (As it did not go in their favour) at all.
    They are now saying that in Pre-Action Protocol, and in an attempt to resolve this matter without the need for court intervention they will provide a expert medical report and witness statement once they received the bank statements and accounts. and that if we do not agree to mediation or ADR they are starting legal proceedings.
    Magenta

  12. #12
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    Default Re: Estate Accounts

    I suppose they are disgruntled family members, and I note this has been ongoing for over three years.

    It looks as if they are trying to bully you into agreeing a settlement with them to avoid the cost of litigation.
    Their solicitor of course is being paid the whole time and won't object to some litigation!
    First it was dementia, then undue influence and then they waved the Inheritance Act

    Whilst costs for both sides are most often awarded out of the estate no guarantees can ever be given about what costs orders the court will make at the end of the case.
    If the court decides the caveator was pursuing a lost case from e.g. the time the medical records showed dementia was not a factor. they could award costs against that party.

  13. #13
    magenta's Avatar

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    Default Re: Estate Accounts

    Yes it has been going on for sometime. The biggest problem I have is their will that they have presented. Like I say it is not signed, not dated, not witnessed and even has the wives name is incorrect. The will writes that gave a covering letter stating it is a copy as they cannot find the original stated that the took the company over in 1996 but I went to company house and the company they state they took over was not until 2005. Well after the ladies death in 1998.
    They have made serious accusations in written statements which I have letters from the bank and police statements to prove these to be untrue. This is a small part to why I feel I do not want to negotiate with this person.
    Just to let you know I have funded all this out of my own pocket total cost so far is 20,000, sick joke as will stated all cost out of estate.
    This leads me into another question as to why executor has to foot the bills and not come out of the estate. Now I have to go to mediation cost I dread to think.

  14. #14
    Peridot's Avatar

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    Default Re: Estate Accounts

    Hi Magenta,
    Oh dear, I agree with all previous responses so far. I don't see that they have a right to any bank statements. They have received everything under the Larke v Negus relating to the validity of the Will. Are they saying their Will is later than yours but they can't find the original?
    What are they trying to get at with copies of bank statements. Are they trying to claim there was some sort of fraud or undue influence over the deceased that they hope to show with the bank statements?
    My view yes be helpful, which you have been with the LvN request but if they want GP records then they should be obtaining them. They are no longer confidential after the person has died although they may need to obtain your authority for their disclosure, but why should you pay for the copies of the records? I wouldn't refuse authority if it is needed of course be seen to be helpful but I don't know what else they expect here.
    It does sound like they are clutching at straws. I wouldn't get into any dialogue with the people other than through mediation and it may even be sensible to have a sought advice on the various options before attending. Yes it is expensive but you will also need advice on what they are requesting.

    What are they claiming they are due. Does the unsigned 'draft' will leave them everything? It would be sensible to look at the will they claim should be correct albeit they can't actually locate an original! and see if you can see what they are angling for. Maybe then consider the cost to the estate if the matter went to Court (although the costs of a spurious claim could always be awarded against the person bringing the claim!) Would an offer make this go away or are they likely to want their 'day in Court' irrespective of how reasonable you are or what offer you possibly make?

    Have they asked for anything as yet? Do they still have a solicitor acting or are they doing this themselves now? Sorry I couldn't quite work it out. If they no longer have a solicitor I would suggest they have been told they are unlikely to be successful and the law firm are no longer acting or is the request for GP records from the solicitor?
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

  15. #15
    magenta's Avatar

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    Default Re: Estate Accounts

    Hi Peridot
    The letter that got presented with their will they are trying to state that it was in 1998, the will I am representing is in 2012.
    Their will everything was left to the otherside.
    I agree about the GP records, do not know why they have asked us and they went to the hospital themselves and got records and now they state they have a Golden Rule of Thumb specialist medical report so I do not know why this week I am being asked to obtain GP records for them. They even sent medical records to us that stated he was functional at home no help needed etc but now state they have nothing in their procession. It is all very strange behaviour.
    Yes all correspondence is through their solicitor, before this last letter they have instructed us to pass on everything to them on the basis of that will.
    Now that they are talking about mediation but not give any explaination as to what they want only for us to made an offer to settle. BUT is this a good thing to do.
    The supporting statements we have been sent are a pack of lies and malacious falsehoods and they are even changing the statements that they are making. First stating one thing and then stating something completely different on the same subject. They have mentioned about undue influence our solicitor wrote and asked them to clarify they totally ignored two letters requesting evidence of their claims. They even mention this in correspondence to the solicitors that draw up our will. They gave a full and comprehensive report back stating there was no undue influence. This had been also stated by the hospital to them.
    Once again they are refusing to pass on the evidence/claims until we agree to mediate. Surely this cannot be correct?
    How on earth can they make these statement without evidence being provided to us.
    We feel that if we go to mediation everything the other side had done he gets away with. We feel he should be accountable to someone.
    Magenta

  16. #16
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    Default Re: Estate Accounts

    You can always go to mediation, but not agree to a settlement if they don't produce a coherent claim.
    The inconsistencies in their statements confirms me more IMO that they are trying to bully you into offering something, anything rather than go to litigation.
    As @Peridot and my earlier post it is not unusual for claimants to threaten litigation as they think they are immune to a costs order "as it comes out of the estate". Well it doesn't always.

  17. #17
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    Default Re: Estate Accounts

    Hi again,
    I agree with Des8. If an application to Court was made by them then the Courts expect parties to try and reach agreement through mediation is at all possible. It appears that they aren't going to show their card and I would guess that is because they know they may be at risk if they issued an application. Hold your nerve, take your solicitors advice. Although, If they are not coming up with any evidence to back their claim what are you negotiating? There are always risks going to Court. From what you have said it appears you have obtained the evidence you need to validate the Will you are appointed under. Maybe accept the offer for mediation but with only with confirmation from them of their alleged claim?
    As Des8 said you don't have to negotiate a settlement at all at mediation and I suspect you will know pretty rapidly into the session whether there is any chance of negotiating or if this is just a last ditch attempt by them to get something!
    Just one other thing, are the other party family and did the person who died support them in any way financially or their children, paying school fees for example or some such. It may be another potential claim route but I suspect not as that would have been a stronger claim to raise at the outset, but thought I should check.
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

  18. #18
    magenta's Avatar

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    Default Re: Estate Accounts

    Hi Peridot,
    You have said If an application to Court was made by them then the Courts expect parties to try and reach agreement through mediation is at all possible. By this do you mean the permenant caveat? Or do they have to made another application? As I am unsure of what you mean - sorry about that.

    To be honest I am not sure of what we are negotiating as they have not put in a final claim after being asked twice. The first letter before claim they were accusing the executors of taking money. ie me. Then we received a second letter before claim then leaving the executors out of it, but accusing the beneficiary. Which I might have we have documentation from the banks to prove this was a false allegation in both accounts. Our solicitor then asked them to finalize their claim on two seperate occasions as they were requesting documents from us. Our solicitor has never had a response as they have chosen to ignor it. Now we have received a letter stating they are ready to issue proceedings but still asking for us to get documents ie GP reports etc for them. If we do not agree to mediate within 14 days they are going to start proceedings. So I really do not fully know what their claim is at this time.
    They keep stating that if our will is valid by the judge that they would then start proceeding under the inheritance act. Recently this part seems to have died a death.
    The relationship between the deceased and the claiment is adult stepchild. That was an adult when they got married and soon left within weeks.
    Magenta

  19. #19
    Peridot's Avatar

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    Default Re: Estate Accounts

    No worries, sorry I probably didn't make it very clear. This would be a new application to the Court claiming your will is invalid due to a capacity issue or allegations of undue influence (very difficult to prove!) and either to persuade the Court to reinstate the previous Will they claim exists (IMO very unlikely to be successful). If they were successful on the first count, showing your will is invalid but unsuccessful on the second then the intestacy rules would have to be followed. So to spouse initially then children. Other family would only benefit and again in a strict order, would only benefit if there is no surviving spouse or children.

    Any possible claim under the Inheritance (Provision for Family & Dependants) Act as an adult independent child and have not been receiving any regular financial assistance for example is doubtful to be successful.

    I suppose the mediation may get them to show their hand so to speak, but also if they did then bring a claim in the courts it puts you in a good light. If they do not explain what they want then you can't negotiate/mediate with them, you don't have to agree to anything but if you know what their thoughts are then you can discuss with your solicitor any plan of action if needed.

    In my opinion, the letters are probably threats to try and get you to maybe offer something rather than the possible issue of them making a claim and the potential costs of defending the claim. Mediation possibly gives you more information to make a more informed decision what next move to make, if any. Take your solicitors advice. You can always pop on the forum if you have any queries or feel you need a bit of support.
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

  20. #20
    magenta's Avatar

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    Default Re: Estate Accounts

    Hi Peridot,
    Thank you for your advice and for the advice that everyone else gave really appreciated it.
    I do have a feeling that I may pop back, even if it is just to update everyone.
    Magenta

  21. #21
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    Default Hearings

    Hi All,

    Hoping someone can advise, when you had been called to a probate hearing (to place a permentant caveat on) can I ask are you entittled or should you be presented with the documents that the claiment replies upon to be shown to you before being called to court. Or do you just find out on the day what they are to produce is that the norm. As we never see any documents before the hearing, so I thought I should ask.


    Magenta

  22. #22
    Peridot's Avatar

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    Default Re: Hearings

    Hi Magenta,
    Is this as a result of you (or the executor) having placed a warning so the person who placed the caveat has been ordered to make an appearance?
    An appearance does not have to be in person but will require them to indicate the need for the caveat? If so then a hearing where both parties attend is not necessarily what is required. Sorry if I've got the wrong end of the stick but a little more information would be helpful.
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

  23. #23
    magenta's Avatar

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    Default Re: Hearings

    Hi Peridot,


    Sorry for the delay in getting back in touch.


    We had obtained Grant of Probate and then received a summons to go to court by the claiment to get the grant revoked and a permanent caveat placed on.

    The claiment issued an affidavit to the court (different from the original caveat) and witness statements. So my question is should we have seen the affidavit and statements prior to the court hearing.

    Magenta

  24. #24
    Peridot's Avatar

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    Default Re: Hearings

    HI,
    You shouldn't take any actions with regard to the estate at this time until the hearing has been decided. Do you have no idea why the person has made the application? Was there no indication previously and has the person been in touch before? I assume that this is a relative who has applied? A little more information may be helpful, such as is there a valid Will, were you (and any other person) appointed executors or are you administrators (ie where there is no Will).
    I would contact the Court that you received the summons from and explain that you have not seen the witness statement and request copies. Once you have them it may be necessary to see a contentious probate specialist. Usually this is a lawyer in a firm's litigation department, but some probate/private client departments in firms, have specialists in that department, so you may need to call around.
    I have not had this happen before, usually once Probate has been granted if a person has a claim against the estate then the claim is made, not an application to revoke the Grant and prevent another being granted. I think a few more details would assist in working out what the issue is. Do they believe there is a another later Will for example?
    Sorry more questions than answers but start by contacting the Court and it may explain more why this application has been made.
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

  25. #25
    magenta's Avatar

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    Default Re: Hearings

    Hi
    Hearing has been and gone, we were told as executors by our solicitor we do not attend as we would have no bearing on outcome. (rather strange as we pick up the bill?).
    The bit I do not understand is we were summonds to court but we had no prior knowledge or understanding of what was going to be presented to the court. Six months after the hearing we were sent a copy of the affidavit stating they were beneficiaries of a previous will?
    This was sent with witness statements covering a range of things again we never got copies of these BUT as we were charged for the statements I have to presume that they were presented to the Judge? As I believe you only get charged for the hearing concerned and the witness statements were covered in the costs.

    So my question is should we have been presented with the documentation that they were going to present before the Judge before the hearing took place.
    Which now resulted in a permanent caveat being place on.
    Magenta

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