Last Will and Testament could not be further from the truth

[Openlaw15]

Re: Last Will and Testament could not be further from the truth

If definitely a mirror will, then I think the surviving partner has a legal right to disregard the mirror will & make another in whatever manner they want.

Provided they are of 'sound mind', of course!.................

But I could be wrong (so don't tell my OH about my musings, lol!)

No, you're right. The law of wills in general is that the will maker can change their mind at any point up until they die. If they signed mirror wills there is then also this flexibility to later change the terms, for new situations etc. Codicils could be used to make additions and generally do not require subsequent wills unless the terms are very complex or substantially different from the original.

[Stuart Herd]

Re: Last Will and Testament could not be further from the truth

Not a problem putting the Wills on here but not sure how to do it. Will check with Celestine that its ok to do so and find out how you do it. Will contact her on Monday.

[Stuart Herd]

Re: Last Will and Testament could not be further from the truth

You only have 6 months to challenge it so its now out of time unless I can get the Court to reinstate my claim. After my Solicitors first letter they stopped responding so then it would be necessary to issue Court proceeding which could expose me to the other parties costs as well. I don't have the correspondence with me but I believe it was January 2013.
I did everything everything asked of me by my father to ensure my stepmother was well provided for and the Cosgrove's between them have taken my family inheitance of approximately £150,000 which also includes the estates of my grandparents and mother. This is what I just cannot come to terms with and why I must continue my fight. My father deserved better than this from the Cosgrove's

[Openlaw15]

Re: Last Will and Testament could not be further from the truth

You only have 6 months to challenge it so its now out of time unless I can get the Court to reinstate my claim. After my Solicitors first letter they stopped responding so then it would be necessary to issue Court proceeding which could expose me to the other parties costs as well. I don't have the correspondence with me but I believe it was January 2013.
I did everything everything asked of me by my father to ensure my stepmother was well provided for and the Cosgrove's between them have taken my family inheitance of approximately £150,000 which also includes the estates of my grandparents and mother. This is what I just cannot come to terms with and why I must continue my fight. My father deserved better than this from the Cosgrove's

It's not going to be cheap for a start. Why not ask the 'retired barrister' on the other website. If anyone knows what your prospects are it's him and other professional lawyers. It may be possible to infer a mutual will even though they were in effect mirror wills, in very limited cases I believe. I would need to see the actual wording from both sets of wills - as one has discretion (mirror wills) to change terms in the event of one another's death, and one the other one (mutual wills) is more restrictive. It seems that the surviving spouse says 'I haven't saw for 10 years' is quite common so I think it has come from her solicitor. I have a recent US law journal and guess what their attorney also said, the surviving spouse said, 'she had not saw him for 10 years.' The inference is it's women who are doing this more than men perhaps. The other inference is the 10 year excuse is a international practice, a coincidence or not. Why ten years is my question, notwithstanding it's a very significant period.

[Noah]

Re: Last Will and Testament could not be further from the truth

This is normal law degree stuff....wills and beneficiary gifts. So, with respect to you also am qualified to have an opinion on the matter, are you? Have you studied wills as part of your degree?

I did not reply before so as not to derail the thread any further . Wills may be a normal law degree module but as i am sure you will understand the real knowledge and expertise comes when training as a solicitor or barrister.
You have previously stated that you degree is in commercial law I think hence your knowledge of other areas will be more limited otherwise why does anyone specialise in one particular field?
There are people who earn huge salaries and are senior partners in massive law firms who specialise in wills and probate , these people charge many £100's per hour. Theory and balancing that theory with practice are two very different things.

I have not studied wills , my knowledge comes from what qualified solicitors have advised me in the past when their opinion has been sought

As for the OP , well as i said i would be fascinated to know more about it as it seems to be posted somewhere but I suspect that in reality for the relatively modest sum of £150000 there is little to be done . ( I am not suggesting that it is a small amount of money just that it is quite likely that many many thousand would be eaten up by lawyers fees with no guarantee of winning.

[Openlaw15]

Re: Last Will and Testament could not be further from the truth

I did not reply before so as not to derail the thread any further . Wills may be a normal law degree module but as i am sure you will understand the real knowledge and expertise comes when training as a solicitor or barrister.
You have previously stated that you degree is in commercial law I think hence your knowledge of other areas will be more limited otherwise why does anyone specialise in one particular field?
There are people who earn huge salaries and are senior partners in massive law firms who specialise in wills and probate , these people charge many £100's per hour. Theory and balancing that theory with practice are two very different things.

I have not studied wills , my knowledge comes from what qualified solicitors have advised me in the past when their opinion has been sought

As for the OP , well as i said i would be fascinated to know more about it as it seems to be posted somewhere but I suspect that in reality for the relatively modest sum of £150000 there is little to be done . ( I am not suggesting that it is a small amount of money just that it is quite likely that many many thousand would be eaten up by lawyers fees with no guarantee of winning.

I start off by thinking about the problem with my legal knowledge and then if it is not satisfactory for the Op's specific needs, I will do some independent research before I post. My degree in commercial law, you say, well no I would not have said that simply because commercial law is not a strict component of the qualifying law degree and neither could one attain a qualifying law degree in commercial law. I may have said I have studied commercial law which is a rather altogether different set of facts. I look for my answers in different places and will only base on authorative sources, where the answer is initially beyond my competence. However, studying wills especially when undertaking research questions takes one outside the ordinary qualifying law degree and towards practice of wills in real life situations. Legal practice is more about procedure than it is law per se as without the study of law procedure would have no place. I do not post information for the sake of filling this box, I do so if it is either within my competence or if I were to research the answer substantively.

[EXC]

Re: Last Will and Testament could not be further from the truth

The wills.

Just to say Stuart is fine with them being unredacted as they're in the public domain.

I should stress the signed statement from my stepmother giving the reasons for excluding me is simply untrue. From when my father passed away until she died we stayed in regular contact and in addition never missed sending birthday and Christmas presents. Furthermore days before making the statement she even sent me a cheque for my birthday which was duly paid into our joint bank account.

We were always told how much Michael Cosgrove cared for his mother and how devastated he was when she died. Instead of recognizing how we had kept in touch to ensure she was okay he repaid that kindness by taking my family inheritance. I did absolutely everything asked of me and have lost absolutely everything.

[Openlaw15]

Re: Last Will and Testament could not be further from the truth

You only have 6 months to challenge it so its now out of time unless I can get the Court to reinstate my claim. After my Solicitors first letter they stopped responding so then it would be necessary to issue Court proceeding which could expose me to the other parties costs as well. I don't have the correspondence with me but I believe it was January 2013.
I did everything everything asked of me by my father to ensure my stepmother was well provided for and the Cosgrove's between them have taken my family inheitance of approximately £150,000 which also includes the estates of my grandparents and mother. This is what I just cannot come to terms with and why I must continue my fight. My father deserved better than this from the Cosgrove's

Update

My thinking is that a discretionary trust was set up before 1989. Dorothy's gifts were only effected after your father passed after the 1989 will. only. The trust should have protected your rights to the estate once Dorothy died in 2012.


I have read your father's will made in 1989. There is clearly an inconsistency. There was intended besides bequeathing gifts of estate, for an absolute discretionary trust. At para. 3 (1989 will), the terms for Beneficiary Dorothy are "all my estate and whatsoever and wherever situate." This is an outright gift to Dorothy made perfect on transfer and formalities. At para. 6 (same will) the terms are "all of my real and personal estates and effects whatsoever and wheresoever" to my trustees...ie income capital on "absolute discretion (ie discretionary trust." There should have been a trust instrument set up by deed, ie the formalities for a discretionary trust. It would appear that the trust is live if there is a trust instrument. Did you make contact with the trustees about this discretionary trust? You should have been informed on your father's death. This wreaks of lawyers' negligence to me. You said Dorothy's was a mirror will. Where is her will that was created before 2008?

[Stuart Herd]

Re: Last Will and Testament could not be further from the truth

Thank you Openlaw for spending time looking at the documents. I must admit I read the Will that paragraph 3 would come before paragraph 6 whereas if I have understood your reply correctly that may not be the case. I would like to mention the following points:
(1) At no time did the Solicitors contact me about the Will. All information was very reluctantly supplied following specific requests from me.

(2) When I asked why Mirror Wills had been prepared they said there was nothing on their file other than copies of the 2 Mirror Wills. I must admit I cannot understand why no attendance notes were prepared to support the decision to prepare Mirror rather than mutual Wills.

I will wait a little longer to see if there are any other comments before trying to find a solicitor who would be prepared to look at the documents with a view of a possible negligence claim.

Thank you once again for your comments.

Stuart Herd.

[Amethyst]

Re: Last Will and Testament could not be further from the truth

Do you have a copy of Dorothy's Will from 1989 ( the mirror one)?

[Stuart Herd]

Re: Last Will and Testament could not be further from the truth

I was told about the Mirror Will for my Stepmother by both my late father and his Solicitor (the Solicitor prepared both Wills). His Solicitor provided me with an unsigned copy which I have in my possession. Clearly as it was subsequently replaced it would not be on public record and certainly the Cosgrove's would not provide a signed copy.

[Amethyst]

Re: Last Will and Testament could not be further from the truth

And it mirrors exactly your father's will ?

[Stuart Herd]

Re: Last Will and Testament could not be further from the truth

Yes it mirrors my father's subject to name reversals.

[Openlaw15]

Re: Last Will and Testament could not be further from the truth

Thank you Openlaw for spending time looking at the documents. I must admit I read the Will that paragraph 3 would come before paragraph 6 whereas if I have understood your reply correctly that may not be the case. I would like to mention the following points:
(1) At no time did the Solicitors contact me about the Will. All information was very reluctantly supplied following specific requests from me.

(2) When I asked why Mirror Wills had been prepared they said there was nothing on their file other than copies of the 2 Mirror Wills. I must admit I cannot understand why no attendance notes were prepared to support the decision to prepare Mirror rather than mutual Wills.

I will wait a little longer to see if there are any other comments before trying to find a solicitor who would be prepared to look at the documents with a view of a possible negligence claim.

Thank you once again for your comments.

Stuart Herd.

The discretionary trust it would seem kicks in on Dorothy's death and if it were created properly (ie constituted, meaning that title (ownership) passes from your father to the trustee via trust instrument/ deed) it should have defeated Dorothy's successors (her listed beneficiaries) interest as per her own will's terms, is my point. Apparently, the discretionary trust protects your interests from the tax man and other claimants. There are terms which also suggest that if the gift were to fail, ie not pass to you it should go back to the settlor's estate (ie residue).

, I actually came across one of these discretionary trusts in addition where some family members held beneficiary interests to a discretionary trust; but more than that I thoroughly researched discretionary trusts which are actually some 150 years old at least. A trust can be made by its settlor (formal name for trust maker) inter vivos (when alive), ie at any point up to death including when testator makes a will. Discretionary trusts are different to other trusts in that the beneficiary's interest are not automatic because their essence is to avoid taxes and serve to protect beneficiaries from wasting their gifts (ie estate). On the contrary, they are subject to the trustees absolute discretion, these terms are the essence of identifying such a trust, according to my education, anecdotal experience (family situation), and independent research. Didn't your solicitor mention anything to you about any type of trusts?

[Stuart Herd]

Re: Last Will and Testament could not be further from the truth

I am trying to get Irwin Mitchell to look at the Will to see if they feel there are any potential claims open to me. Furthermore I introduce the point that they have no attendance notes to support why they prepared Mirror rather than Mutual Wills.