grandmother's will, probate delay.

[superfan]

i'll try and keep this as brief as i can but looking for some advice if possible.
my grandmother passed away in march of last year, she made a will a good few years ago (can't remember the exact year) but then made a second will in 2019.
my father was appointed executor of the will and the probate process seems to be dragging on and on and hitting more and more roadblocks.
my grandmother was almost 100 years old when she made the second will and probate are questioning if she was in a right state of mind to change her will at that age, they contacted her GP to ask him if he would fill out a form to say she was in a right state of mind in his opinion but he refused because he hadn't seen her in person in a while so felt he wasn't in a position to do so.
when my grandmother made the second will it was witnessed and signed by 2 solicitors, i don't know for sure if probate contacted these 2 people, i've asked my father and he said he can't say for definite but he doesn't think they were contacted. i've no legal experience at all but can their word not be accepted to say that they felt she was in sound mind at the time and if not why did they sign the new will in the first place?
also, the second will was made with a separate solicitor firm to the first will, i've no idea why that happened.
my father and the rest of his siblings have asked if they can't just revert to the original will but it doesn't see to be an option, don't know why. there's talk now of it having to go to the high court to get a ruling (i presume on which will to use).

if anyone could offer any observations or advice on this i'd really appreciate it, my father is fed up with the whole thing, his siblings are constantly on at him wanting to know what is going on and i suspect some of them think he's up to something and trying to pull the wool over their eyes, he could do without the stress the whole thing is causing.

 

[Salvadore]

it would have to be the last will made (assuming she was of sound mind). All previous versions are invalid.

Has the Probate Office been asked if they can accept the assurances of the witnesses to the will, given that they can’t be beneficiaries?

 

[superfan]

Has the Probate Office been asked if they can accept the assurances of the witnesses to the will, given that they can’t be beneficiaries?

I've said something along these lines all along, I've absolutely no experience in these kind of matters but surely their word should suffice, that would seem common sense to me. I looked at a copy of the new will today and you can clearly make out the name of one of the people who signed it, if they're not with that firm of solicitors any more surely they can still be contacted.
As I said previously maybe they have, I don't know.
If all previous wills are invalid why does it have to go to the high court, I don't understand that?
Would it be to rule whether or not she was in sound mind and if not then revert to the original will?

 

[Dr Strangelove]

also, the second will was made with a separate solicitor firm to the first will, i've no idea why that happened.

What are the main differences between the wills?

 

[Salvadore]

Would it be to rule whether or not she was in sound mind and if not then revert to the original will?

Probably but like you I don’t know why this should be necessary.

When my wife applied for probate in respect of her mother’s will, the Probate Office asked for an Affidavit of Attesting Witness - a confirmation from the solicitor that it was he who witnessed the signing of the will. Perhaps something similar could be done in your case.

 

[Clamball]

Is your father being advised by a solicitor?

The solicitor who did the second will should have his visit notes which will give information about the meeting with the granny to do the 2019 will. Who was there, where the meetings took place, what explanations she gave him and why he felt able to proceed without a letter from her GP saying she was of sound mind etc.

As @Salvadore says an affidavit from the solicitor who drew up the second will and from the witnesses should be sufficient for the probate office.

Your fathers solicitor should be able to arrange all of that.

Your uncertainty seems to be coming from your fathers uncertainty about what steps to take next but he should follow the advice of his solicitor. I am guessing the solicitor probably said if probate won’t accept the attesting affidavits the next steps would be asking a court to decide, but that is just going to cost so much.

 

[Bronte]

there's talk now of it having to go to the high court to get a ruling (i presume on which will to use).

Who suggested this?

It sounds based on what you've written that a valid 2nd will was made. Based on the fact 2 solicitors witnessed it. Just because she is 100 doesn't mean she was incapable of changing her will. People do this all the time.

Apart from her age is there a reason for probate to have concerns. Such as the wills be vastly different. Such as being in favour of one child on 2nd will and in favour of all children in 1st will.

But as you said all siblings are happy enough I assume there is no bone of contention in the new will.

Your father as executor sounds like he has not much clue what is going on. So I can see why his siblings are getting annoyed.

So what to do:

1. Go with him to his solicitor and find out the actual situation
2. Clearly the 2 witnessing solicitors will attest to the grandmother being of sound mind when they witnessed her signature
3. You can't just suggest using the 1st will, unless the 2nd will is invalid
4. So far there are no grounds to suggest your grandmother was not of sound mind, but it's a good thing the probate office is vigilant
5. What was the time period between the will and the last GP visit?
6. If your father doesn't want the stress he can renounce his executorship
7. Given the ages I'd assume the pressure is from the children of siblings
8. When the situation is clear, get the solicitor to set out the situation to your father in writing, which I'm amazed has not already happened? Because if it were me, I'd just give each of the siblings a copy of the solicitors letters to you dad and a copy of the probate office letter as well.
9. If your dad refuses to go with you to sort this out with his solicitor, then you leave it to him and tell him you want nothing further to do with it

And it would have been a good idea to use the solicitor who drafted the will, you don't have to, but in messy situations it can help.
.

 

[thedaddyman]

I know it is painful but probate are only doing their job here. A normal will would take around 6 months to clear at the minute.

In contacting the GP, they were looking for what is known as "testamentary capacity of the deceased". In effect they need to establish if

• The testator must understand that she is executing a Will and that this document will dispose of her estate on death.
• The testator must know the nature and extent of her estate.
• The testator must be able to call to mind the persons who might be expected to benefit from her estate and decide whether or not to benefit them.

In terms of getting medical sign off on this, one thing to consider is what did she die of, was there any mention of dementia etc mentioned on the death cert?. Given the timing, if there was, then Probate will be concerned

To resolve this, one question that should be asked is if the solicitors who arranged the 2nd will went out and got medical advice on it. If so, where did they get it from?

If medical advice cannot be got, Probate may accept confirmation from the solicitors involved. However if they have any indication that Undue Influence was involved, that's when the Hight Court may need to get involved.

 

[superfan]

Wow, wasn't expecting so many replies when I checked this morning, thanks a million for responding, lots to read through there.

What are the main differences between the wills?

One of the siblings was left out of the 2nd will by my grandmother, I don't know why. unfortunately he passed away a few months before my grandmother did.

Is your father being advised by a solicitor?

Yes he has been dealing with the same solicitor through the whole process for over a year now.

As @Salvadore says an affidavit from the solicitor who drew up the second will and from the witnesses should be sufficient for the probate office.

I have suspected all along that this would be the case but as I said I have no experience in these matters, same for my father.

Who suggested this?

I would have to check with my father but pretty sure it was the solicitor and only in the last few weeks.

3. You can't just suggest using the 1st will, unless the 2nd will is invalid

Would that be why they're suggesting the high court, to rule the first will invalid?

8. When the situation is clear, get the solicitor to set out the situation to your father in writing, which I'm amazed has not already happened? Because if it were me, I'd just give each of the siblings a copy of the solicitors letters to you dad and a copy of the probate office letter as well.

A meeting took place last week with my father and the solicitor (I think though I did hear mention of a barrister) and most of the siblings and it was agreed that from now on all siblings would get letters sent to them by the solicitor.

If medical advice cannot be got, Probate may accept confirmation from the solicitors involved. However if they have any indication that Undue Influence was involved, that's when the Hight Court may need to get involved.

This is interesting, are you saying undue influence from family members?
I don't think so because when the second will was made up the solicitors wouldn't allow any family members in to the room with them when they were discussing it with my grandmother, I remember my father telling me that at the time and finding it very strange.

 

[Bronte]

- Are there children of the dead sibling?
- Of course family members can't be allowed in the room for the will. Was your father in the building? Who arranged the solicitors.
- Barristers are expensive, who authorised that? And why?
- Is this a wealthy estate?
- You are getting everything dilly dally from your father. Why didn't he give his siblings copies of the correspondence already?


I suspect there is a reason the sibling was left out of the will. And that reason I suspect is not pleasant.

 

[superfan]

- Are there children of the dead sibling?
- Of course family members can't be allowed in the room for the will. Was your father in the building? Who arranged the solicitors.
- Barristers are expensive, who authorised that? And why?
- Is this a wealthy estate?
- You are getting everything dilly dally from your father. Why didn't he give his siblings copies of the correspondence already?


I suspect there is a reason the sibling was left out of the will. And that reason I suspect is not pleasant.

yes he has 1 daughter. as far as i know nothing has been suggested all along as this being a problem or that his daughter is objecting.
the thing is, when the solicitors came out to have a "meeting" with my grandmother they said it was just a meeting and no mention of a new will so one of my aunts asked to sit in on the meeting and they said no. it was only a few months after my grandmother died that it was discovered there was a second will. my father went with the firm of solicitors who drew up the first will to look after probate and they discovered this second will.
the solicitor looking after probate told my father it'll have to go to the high court and suggested the barrister.
i wouldn't consider it a wealthy estate, the family home still has to be sold but i would say in total 300,000 to 400,000 euro split between 8 siblings.
my father was providing copies of correspondence but some siblings were accusing him of not doing this, because it's taking so long some of them are getting suspicious which is probably understandable. it has soured relationships between my father and some of his siblings which is very unfortunate but he has no control over how long this has taken. i've tried to stay out of it up to now and just listen to his concerns but he ended up in A&E last week with his heart which i suspect is related to the stress of all of this. at the meeting last week he offered to step aside if another family member wanted to take over executorship and nobody offered to do it.
i've always found this forum very helpful so just thought i'd post the situation on here and see what advice might come up.

 

[Salvadore]

A meeting took place last week with my father and the solicitor (I think though I did hear mention of a barrister) and most of the siblings and it was agreed that from now on all siblings would get letters sent to them by the solicitor.

The solicitor contacting all siblings directly and hiring a barrister will add hugely to the eventual cost. It would need to be a beefy estate to warrant that outlay.

I don't think so because when the second will was made up the solicitors wouldn't allow any family members in to the room with them when they were discussing it with my grandmother, I remember my father telling me that at the time and finding it very strange.

That’s not unusual. This allows a solicitor to tease out a person’s true intentions without the possibility of having someone else apply unreasonable influence. It happens a bit with elderly people.

 

[superfan]

That’s not unusual

surely it is if they said it was just a meeting?

 

[Salvadore]

the solicitor looking after probate told my father it'll have to go to the high court and suggested the barrister.

That’s the nuclear and very expensive option. Unless and until the Probate Office insist on High Court clarity, I think it’s unwarranted.

Perhaps suggest to the solicitor that he pursue other and less expensive options (e.g. the Affidavit) to see if this would address the Probate Office’s concerns. They’re not unreasonable. If the second Will isn’t materially different from the first, I doubt they’ll kick up too much.

 

[Salvadore]

surely it is if they said it was just a meeting?

It sounds like your grandmother wanted to discuss her affairs with the solicitor under the guise of a “meeting”. What the hell else would the meeting be about.

She was quite right to ask for the meeting and the solicitor was quite right to insist that she was allowed speak freely. It’s a private matter after all.

 

[superfan]

Perhaps suggest to the solicitor that he pursue other and less expensive options (e.g. the Affidavit) to see if this would address the Probate Office’s concerns

thanks salvadore i will have to get on to my father and find out if this has already been suggested.

 

[superfan]

as executor, can my father contact the probate office himself for information/advice or does it have to be done through the solicitor?

 

[superfan]

It sounds like your grandmother wanted to discuss her affairs with the solicitor under the guise of a “meeting”. What the hell else would the meeting be about.

She was quite right to ask for the meeting and the solicitor was quite right to insist that she was allowed speak freely. It’s a private matter after all.

if it was with the solicitor she drew up the first will with i could understand that but this meeting was with a different solicitor. i wasn't there but apparently my aunt told the solicitors when they were leaving the meeting that if anything untoward emerged she would take matters further and the solicitor(s) replied there was nothing to worry about. this is what my father has told me anyway. none of the family were aware of a second will till the solicitor discovered it.

 

[Salvadore]

as executor, can my father contact the probate office himself for information/advice or does it have to be done through the solicitor?

There’s nothing to stop him trying. Although he may have signed something to say the solicitor is acting on his behalf.

This may be of some help. https://www.lawsociety.ie/Solicitor...states-Guidelines-for-Solicitors#.Y1v8OnbMLIU

If the whole thing is stressing your dad out unreasonably, he should consider withdrawing as executor. He doesn’t need to find a replacement.

 

[Bronte]

yes he has 1 daughter. as far as i know nothing has been suggested all along as this being a problem or that his daughter is objecting.

Well I'd be objecting if I were her. Very sad that one sibling out of 8 was left out. Can't remember the rules now but if all siblings renounce can the estate go into the system via the non inheritance rules. (this is what my family have agreed to do as one parent had threatened leaving one of us out but we can't figure out which one of us it is !)