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Caveat Warning Appearance

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jaycee401 | 14:17 Fri 01st Nov 2013 | Law
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There is a dispute of a Will. Caveat was placed at probate and warning given. An appearance has just been placed. So the next steps I presume will be court. In between all this the solicitor who made the Will was sent a Larke V Nugus questionnaire to complete which she did.
As there has now been an appearance does this mean that they found something ‘unusual’ in the response from the solicitors replies to the Larke V Nugus or could it mean because there was an appearance then the caveat has some grounds.
Our solicitor was adamant the Will was prepared correctly, witnessed and the persons who was making the will was of sound mind, knew exactly what he was doing and there was no undue influence.
If the next step is court who would start the proceedings, us or the caveator? Could we also ask for costs from the caveator?
What reason would the caveator have been able to give as he was not financially dependant. The caveator is in fact the blood son of the deceased person who had nothing to do with him for the past 15 plus years. A previous will leaving everything to this blood son in 1990 has now obviously been squashed with this new will, but there is also a statement from the maker stating why he was leaving nothing to his estranged son.

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dunno in short Jaycee:

Larke v Nugus for anyone following this is:
The plaintiffs were executors of the testatrix's will. The validity of the will was disputed by the defendants on the grounds of undue influence. Several requests were made by the defendant's solicitors to the first plaintiff, a solicitor, for a copy of the will but none was forthcoming.

Held, the first plaintiff had not fully understood the implications of The Law Society's recommendation. In litigation over a will, the ruling principle was that every effort should be made by executors to avoid costly litigation and where there were suspicious circumstances surrounding a will it was right that full information should be given to those attacking the will. In this case the copy requested by the defendants ought reasonably to have been provided.
exciting this, if you like wills

I do not do wills by the way BUT

yes you can claim costs and the case is Mausner v Mincher where the claim was unreasonable and had been rejected, it was held that the costs should NOT come out of the estate as this would penalise the winning side who behaved correctly

there is a wills expert hanging around with nothng to do and he may be able to help - however I think we all note that you have retained lawyers so your first port of call should be there.
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Thanks Peter, hopefully the wills expert will be around over the week end :)
Providing that the will which has gone to probate has the statement that it revokes and cancels all previous wills, an earlier document cannot have any validity or force. Presumably the solicitor who drew up the last will was aware of the need to include such a declaration.
PS
If you wish to avoid such a situation happening where your own will is concerned, you can include a clause to the effect that anyone disputing the will will end up with nothing. Such a clause has been upheld in the past, and the greedy person who disputed the will in the hope of getting a massive fortune, lost the original bequest, which would still have been more than I've ever earned.
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Hi Atalanta, yes the will which has gone to probate has the statement that it revokes and cancels all previous wills. I think I will put that clause in my will, save my daughter having to go through this!!
This is one for Barmaid on here. She is counsel in chancery chambers, that is they deal with wills, probate, trusts and the like. Others on here can cite relevant law, but we don't deal with the day to day workings of the courts or the mechanics of the procedure. She does.
And jaycee, the very simplest will form you can buy in stationers will have that clause reciting that "all wills and testamentary dispositions made by me are hereby revoked" or similar words. I am not sure that is strictly necessary when it is obvious that the new will cannot possibly be read with some previous will; it is not what is called a codicil, a document in the same form as a will but which adds to a previous will ;but rest assured every solicitor will insert it , for the avoidance of any doubt.

And equally, and unfortunately, that will not stop disappointed people from trying to challenge the will or claiming money as a dependant !
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Thanks Fred. I need Barmaid to advise, hopefully she will she this post.
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The new will does state "all wills and testamentary dispositions made by me are hereby revoked"
You refer to your solicitor so you really ought to be asking him these questions. However, I shall do my best to assist - although as Bednobs says, each case is fact sensitive and you really did ought to take proper legal advice.

First a word on caveats. Once a caveat is entered it remains in force for 6 months. During that time no Grant of Representation can be issued. The caveat automatically expires at 6 months, unless it is renewed. If the caveat is warned, an appearance MUST be entered within 8 days else the caveat is removed. Thus once the caveat is warned it NORMALLY follows that an appearance is entered in order to "preserve" the caveat.

//As there has now been an appearance does this mean that they found something ‘unusual’ in the response from the solicitors replies to the Larke V Nugus// - Not necessarily so. It could mean that they are of the view that there is something wrong but more than likely it is simply to protect the caveat.

// or could it mean because there was an appearance then the caveat has some grounds.// - Again not necessarily so (see above). No judicial intervention is required in this process so there is no determination of the issues.
//If the next step is court who would start the proceedings, us or the caveator?// Either of you can start proceedings. If matters remain in stalemate for any length of time you can make an application to the Family Division to have the caveat discontinued.

//Could we also ask for costs from the caveator?// Yes. Whether you will be successful is a different matter entirely.

//What reason would the caveator have been able to give as he was not financially dependant// Financial dependence is irrelevant where a caveat is concerned. His reasons will undoubtedly be that the Will which you are seeking to prove is in some way invalid - ie because of lack of testamentary capacity, lack of knowledge and approval, undue influence or failure to comply with the s9 Wills Act 1837 formalities.

Seek legal advice sooner rather than later.
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Thanks Barmaid. Much appreciated. We do have a solicitor but we do not seem to be able to get answers. You have answered the main concerns and that's whether they found something ‘unusual’ in the response and the financial dependence. If no concerns are found re the Larke V Nugus questions does this mean we can have the caveat removed with no court case. Or does the Caveator still have to agree to the removal?
No, you cant just have it removed. Now an appearance has been entered, the only way to have it removed is with the consent of the Court or the Probate Registry. If the other side consented to its removal, it can be done quite easily.

However, just because nothing appeared untoward from the L v N request in your view, there may be things that the other side view as untoward. If he doesn't consent to removal, a fully contested hearing will be necessary.
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many thanks Barmaid
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The appearance was on the basis that the first will was leaving everything to him but the new will was leaving him nothing. He is the only blood son and is in financial difficulties.
Being in financial difficulties is NOT a reason to lodge a caveat. Still at least if he has no money, he'll potentially be unable to fight this claim.
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Thanks Barmaid.
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Just waiting now to see if he goes down the inheritance act route!
He cant go down the IA route until a Grant of Probate has been issued. Then you need to read Illott v Mitson.
Personal experience only. I bet Barmaid's professional,cynicism is right, . No money, no case. My family once attacked a will and succeeded, but they were prepared to pay many thousands,if need be, to get justice, though what they were after was establishing dishonesty over two houses together worth £100, 000, and their member still inherited £300, 000 because the crooks didn't understand what 'residue' could mean. Without that cash the family would have stood no chance,

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