Contested Will advice please
Discussion
Can someone contesting a Will produce a previously undisclosed piece of evidence to try to prove their claim or, if their claim in its original form is proved to be nonsense, can they change their claim? Also, if their claim is successful, are there any circumstances in which the amount awarded could be greater than the amount claimed or is it capped by the claim?
My wife and her surviving sister are executors and principal beneficiaries of their late mother's Will and for some reason won't ask these questions of their lawyer. There were three daughters and a son. The eldest daughter predeceased her mother and the son is contesting the Will.
My late father in law died intestate in the 80s. His share of the building firm he started with his brothers immediately after the war was taken over by his only son, my brother in law. He now owns and runs the firm on his own but still trades with the original "Bros" business name. In addition to alterations and extensions, his favourite business is building and selling one-off "architect designed" houses on plots the original firm bought years ago. The most recent sold for over £600,000. My mother in law, who died last October, excluded him from her Will saying he had "done all right" and that, after a nominal amount to each of her grandchildren, her money should go to her two surviving daughters. Her Will was rewritten when her eldest daughter predeceased her in 2012; her children's spouses were never included. When she told him he was excluded from the Will he firstly tried and failed to bully her into reconsidering and then refused to have anything to do with her or his sisters. He didn't go to his mother's funeral, for example. Anticipating a challenge to the Will my wife and sister-in-law, instead of selling her house and distributing the capital in accordance with the Will, have let the house and left the her small amount of money largely untouched. They received the challenge in the form of a bill for work my brother in law and his firm did for her after my father in law died. He claims this is in accordance with an agreement he had with her to be reimbursed from her estate. The work he is claiming for ranges from building a garage for her all the way to fitting a pulley on her washing line. No one remembers there being such an arrangement. He does not, however, mention the arrangement that we all thought did exist whereby in return for allowing him to build a house on her garden, he would give her a modest amount of money for the land and a promise to maintain her house until she died.
Two verbal agreements, one true and one false; both equally hard to prove or disprove.
In my research, I have found my mother in law is on the Electoral Roll at both addresses, 91 and 91a, and I wonder if he might say he built the house next door for her with her as developer. If that seems farfetched, I also found the Planning Approval for the house next door which contains eight conditions, with Condition 5 being the provision of a garage at her house which seems to demolish his claim completely in its current form.
If he has something up his sleeve - such as his mother was the developer with him merely as builder - could he introduce this later on or, if his challenge in its original form is found to be ridiculous, could he change his claim?
Her whole estate was valued at £273,000. It's not a fortune.
My wife and her surviving sister are executors and principal beneficiaries of their late mother's Will and for some reason won't ask these questions of their lawyer. There were three daughters and a son. The eldest daughter predeceased her mother and the son is contesting the Will.
My late father in law died intestate in the 80s. His share of the building firm he started with his brothers immediately after the war was taken over by his only son, my brother in law. He now owns and runs the firm on his own but still trades with the original "Bros" business name. In addition to alterations and extensions, his favourite business is building and selling one-off "architect designed" houses on plots the original firm bought years ago. The most recent sold for over £600,000. My mother in law, who died last October, excluded him from her Will saying he had "done all right" and that, after a nominal amount to each of her grandchildren, her money should go to her two surviving daughters. Her Will was rewritten when her eldest daughter predeceased her in 2012; her children's spouses were never included. When she told him he was excluded from the Will he firstly tried and failed to bully her into reconsidering and then refused to have anything to do with her or his sisters. He didn't go to his mother's funeral, for example. Anticipating a challenge to the Will my wife and sister-in-law, instead of selling her house and distributing the capital in accordance with the Will, have let the house and left the her small amount of money largely untouched. They received the challenge in the form of a bill for work my brother in law and his firm did for her after my father in law died. He claims this is in accordance with an agreement he had with her to be reimbursed from her estate. The work he is claiming for ranges from building a garage for her all the way to fitting a pulley on her washing line. No one remembers there being such an arrangement. He does not, however, mention the arrangement that we all thought did exist whereby in return for allowing him to build a house on her garden, he would give her a modest amount of money for the land and a promise to maintain her house until she died.
Two verbal agreements, one true and one false; both equally hard to prove or disprove.
In my research, I have found my mother in law is on the Electoral Roll at both addresses, 91 and 91a, and I wonder if he might say he built the house next door for her with her as developer. If that seems farfetched, I also found the Planning Approval for the house next door which contains eight conditions, with Condition 5 being the provision of a garage at her house which seems to demolish his claim completely in its current form.
If he has something up his sleeve - such as his mother was the developer with him merely as builder - could he introduce this later on or, if his challenge in its original form is found to be ridiculous, could he change his claim?
Her whole estate was valued at £273,000. It's not a fortune.
Edited by DickyC on Sunday 8th March 10:02
Extract from his solicitor's letter:
............
Inheritance (Provision for Family & Dependants) Act 1975
Our client is an adult child of the deceased. Although financial provision was made for him in all of the deceased previous Wills, he is not included in any way in the deceased’s Last Will & Testament dated 26 November 2012. Our client has limited financial security. He has worked all his adult life within the family business. He is 74 years old and still in full time employment. We believe that the deceased had contractual obligations and legal responsibilities to our client which are set out in more detail below which are of sufficient size which requires reasonable financial provision to be made for our client within her Will.
The estate is valued on the Grant of Probate at £273,000, the vast majority of which is to be shared between two beneficiaries. We believe the estate is sufficiently large to accommodate a finding of reasonable financial provision for our client.
We believe that the conduct of our client towards the deceased has particular relevance to this claim. Further details of that conduct is set out below.
In accordance with best practice when bringing a claim for reasonable financial provision a Claimant should specify what they believe reasonable financial provision to be. We have given consideration to our client’s grounds for reasonable financial provision and his like claim for inheritance set out below and we believe given consideration to all the surrounding circumstances that the sum of £44,230 represents reasonable financial provision.
...............
We don't believe he is financially dependent on the money.
I'll read up on proprietary estoppel.
............
Inheritance (Provision for Family & Dependants) Act 1975
Our client is an adult child of the deceased. Although financial provision was made for him in all of the deceased previous Wills, he is not included in any way in the deceased’s Last Will & Testament dated 26 November 2012. Our client has limited financial security. He has worked all his adult life within the family business. He is 74 years old and still in full time employment. We believe that the deceased had contractual obligations and legal responsibilities to our client which are set out in more detail below which are of sufficient size which requires reasonable financial provision to be made for our client within her Will.
The estate is valued on the Grant of Probate at £273,000, the vast majority of which is to be shared between two beneficiaries. We believe the estate is sufficiently large to accommodate a finding of reasonable financial provision for our client.
We believe that the conduct of our client towards the deceased has particular relevance to this claim. Further details of that conduct is set out below.
In accordance with best practice when bringing a claim for reasonable financial provision a Claimant should specify what they believe reasonable financial provision to be. We have given consideration to our client’s grounds for reasonable financial provision and his like claim for inheritance set out below and we believe given consideration to all the surrounding circumstances that the sum of £44,230 represents reasonable financial provision.
...............
We don't believe he is financially dependent on the money.
I'll read up on proprietary estoppel.
There was one previous Will. When his father died and he took over the firm my brother in law told his mother he had "done all right" and should be excluded from the Will. He returned a day of so later saying he had changed his mind and now wanted to be included and took his mother then and there to the solicitor to write her Will.
I think the solicitor is being realistic. You could fight it, easily spend 10-20k in court fees, and still end up having to pay him money.
Presumably the work he's billing for was done and the charge is sensible for the amount of work? If it was, and there's no evidence that the deceased ever paid for it, then I think it's reasonable that a judge would assume that he's owed money for the work.
It will cause a lot of heartache to follow this through, and it seems angry enough already. Call it "full and final settlement" and get it over and done with.
Presumably the work he's billing for was done and the charge is sensible for the amount of work? If it was, and there's no evidence that the deceased ever paid for it, then I think it's reasonable that a judge would assume that he's owed money for the work.
It will cause a lot of heartache to follow this through, and it seems angry enough already. Call it "full and final settlement" and get it over and done with.
I've repeatedly asked the ladies how much they'd be prepared to spend to get shot of him. They talk about doing what their mum wanted.
Of the £44,000 claimed, nearly £34,000 relates directly to the garage which, according to the conditions of the planning approval was required to allow the build, and wasn't built as a favour to her. She didn't drive, her late husband didn't drive and, in fact, he had demolished an existing garage to increase his garden. My brother in law built the garage because he had to when he built the new house and this is why I wonder if he has something up his sleeve like, for example, she was the developer. He hasn't mentioned the house next door at all and there's no hope of finding what money went where.
The truth is, she let him have the land as a favour to a beloved son during a bad time in the building industry but again this is impossible to prove now.
Of the £44,000 claimed, nearly £34,000 relates directly to the garage which, according to the conditions of the planning approval was required to allow the build, and wasn't built as a favour to her. She didn't drive, her late husband didn't drive and, in fact, he had demolished an existing garage to increase his garden. My brother in law built the garage because he had to when he built the new house and this is why I wonder if he has something up his sleeve like, for example, she was the developer. He hasn't mentioned the house next door at all and there's no hope of finding what money went where.
The truth is, she let him have the land as a favour to a beloved son during a bad time in the building industry but again this is impossible to prove now.
DickyC said:
I've repeatedly asked the ladies how much they'd be prepared to spend to get shot of him. They talk about doing what their mum wanted.
Of the £44,000 claimed, nearly £34,000 relates directly to the garage which, according to the conditions of the planning approval was required to allow the build, and wasn't built as a favour to her.
The truth is, she let him have the land as a favour to a beloved son during a bad time in the building industry but again this is impossible to prove now.
It makes sense to me that he might have been removed from the will because the deceased thought that he had already received his 'share', of whatever wanted to be gifted from the future estate then.Of the £44,000 claimed, nearly £34,000 relates directly to the garage which, according to the conditions of the planning approval was required to allow the build, and wasn't built as a favour to her.
The truth is, she let him have the land as a favour to a beloved son during a bad time in the building industry but again this is impossible to prove now.
There was a similar thread a couple of months ago.
It seems that claims like this have almost gone the way of personal injury claims where disgruntled parties can use a 'no win no fee' solicitor who actually just employs someone to send some letters back and forth to get a 'fee' as a percentage of the money gained.
The shoe is on their foot though if they want to take this to court. By that, I mean, if you simply say 'no' that they can't do anything without formal legal action - which is a big step to take.
If it were me, firstly I'd engage a solicitor to negotiate for you, and take a 'commercial decision' on minimising the cost. I would inform the party that the £34k for building a garage he'd been 'paid' for, but here's the rest in full and final settlement.
Refute the claim in its entirety giving all the reasons stated. Then submit a counter claim for the value of the land on the MIL's garden that the son built the house on. Then negotiate a settlement based on the difference between the two claims.
Your wife and her sister can, as Executors, use the funds of the estate to engage in this 'fight', your brother-in-law cannot, he'll have to fund his own legal costs. If he's got any sense he'll put his tail between his legs and 'go away'.
Of course, this depends on how 'up for a fight' your wife and her sister are.
Your wife and her sister can, as Executors, use the funds of the estate to engage in this 'fight', your brother-in-law cannot, he'll have to fund his own legal costs. If he's got any sense he'll put his tail between his legs and 'go away'.
Of course, this depends on how 'up for a fight' your wife and her sister are.
Both sides have solicitors and the ladies' chap is also a barrister who is a friend of my sister in law's boss.
I guess what I'm most interested in is damage limitation. By making his claim has my brother in law shot his bolt? Or, if the claim in its current form is shown to be ridiculous, can he come back with something else? Plus, if it goes to court and he wins, are the damages limited to the amount of his claim?
I guess what I'm most interested in is damage limitation. By making his claim has my brother in law shot his bolt? Or, if the claim in its current form is shown to be ridiculous, can he come back with something else? Plus, if it goes to court and he wins, are the damages limited to the amount of his claim?
DickyC said:
Both sides have solicitors and the ladies' chap is also a barrister who is a friend of my sister in law's boss.
I guess what I'm most interested in is damage limitation. By making his claim has my brother in law shot his bolt? Or, if the claim in its current form is shown to be ridiculous, can he come back with something else? Plus, if it goes to court and he wins, are the damages limited to the amount of his claim?
In civil court, things are on the balance of probabilities - the judge makes a call based on what he thinks probably happened. BIL could double down after his initial claim got rejected, but it will look bad in front of the judge. I guess what I'm most interested in is damage limitation. By making his claim has my brother in law shot his bolt? Or, if the claim in its current form is shown to be ridiculous, can he come back with something else? Plus, if it goes to court and he wins, are the damages limited to the amount of his claim?
It's not damages, but money due to him (if he wins). An actual claim for damages (hurt feelings or similar) would likely be laughed at. The judge might award costs against you though, which would be a hefty lump of money.
If the ladies offer him his claim for the work less the extraordinary amount he has claimed for building the garage (which he had to build as a condition of the Planning Approval not as a favour to her) and he refused, would that also count against him too if it went to court?
He claimed £25,000 for building the garage plus nearly £10,000 for bricking up the windows and moving the boiler. The garage comprises front, back and roof as it was built between the walls of the adjacent old and new houses. As it was a requirement of the Planning Approval and not in his original plan, the windows and boiler flue were now inside and not outside and had to be altered. Again, he had to do this to build the new house, not as a favour to his mum.
The PH collective elsewhere reckon £10,000 for a stand alone, brick built, tile roof garage.
He claimed £25,000 for building the garage plus nearly £10,000 for bricking up the windows and moving the boiler. The garage comprises front, back and roof as it was built between the walls of the adjacent old and new houses. As it was a requirement of the Planning Approval and not in his original plan, the windows and boiler flue were now inside and not outside and had to be altered. Again, he had to do this to build the new house, not as a favour to his mum.
The PH collective elsewhere reckon £10,000 for a stand alone, brick built, tile roof garage.
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