Monday, 21 Jan 2013

Three Initial Steps for Investigating a Suspicious Will

Three Initial Steps for Investigating a Suspicious Will

Three Initial Steps for Investigating a Suspicious Will


What should you do if you suspect that the Will of a deceased person has been prepared in dubious circumstances? You may suspect that the Will-maker lacked the required degree of mental capacity to give instructions to a solicitor or understand the Will or that they may have been influenced by others into making the Will.


The first step is to ask yourself why you have a suspicion. If it is simply that you do not like the contents of the Will then this in itself does not give you grounds to interfere or ask questions. However, if the Will is irrational, contradicts statements made by the Will-maker during their lifetime or is completely out of sync with what would normally be expected (for example to exclude all members of a loving and close family leaving the entire estate to a charity) then a genuine suspicion may arise. If you have genuine concerns about the validity of a Will there are three simple and relatively inexpensive steps which can be taken at an early stage to build up a picture of the circumstances surrounding its preparation. Step one would involve lodging a caveat with the Probate Registry. This prevents the executors of the disputed Will obtaining probate (the grant of probate is a document issued by the court confirming the validity of the Will and which is used by the executors to demonstrate to third parties such as banks that they have the legal right to deal with the assets of the deceased). This step should preserve the bulk if not all of the estate until your investigation has been concluded.

Step two would only be of use if the Will was prepared by a solicitor. In a well-known case before the Court of Appeal (the case of Larke v Nugus), the court said that when a solicitor has been involved in the preparation of a Will which is in dispute that they should, as potential witnesses in any subsequent court proceedings, give a full statement about the circumstances surrounding the preparation of the Will. The Law Society issued a practice note to solicitors a few years ago endorsing this as best practice. In addition to providing a statement the solicitor should also disclose copies of relevant documents. These can range from copies of older Wills to attendance notes and copies of correspondence passing between the solicitor and the Will-maker. It has to be recognised that step two only really applies to solicitors and even though it is seen as best practice to provide a statement, technically, solicitors are not permitted to do so without the consent of the executors of the Will because of the ongoing duty of confidentiality. In the majority of cases, the solicitor and the executors are aware that being uncooperative at this stage may mean they are criticised later if the dispute ends up in court so tend to co-operate.

The third stage is to make a joint application for copies of the Will-makers medical notes. Clearly, this step will only be relevant where you have concerns about the Will-makers health and what impact their state of health would have had on their ability to make and understand the Will.

By taking these three basic steps you can obtain a pretty full picture of what was happening at the time the Will was made and can try and have the estate left in tact until your investigation has been completed. You may uncover evidence which either reassures you that the Will is above board or gives you stronger grounds for disputing the validity of the Will. Either way, by limiting your initial activity to these three steps, you do not incur substantial legal costs in court proceedings and the risks associated with losing those proceedings without being in possession of vital information.
Please contact Wills and Probate Partner, Liam O’Neill, for further advice on this issue, or for expert advice on other wills, trusts and probate matters.

 








Liam O’Neill
Partner, Wills & Probate

 

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