Will - to dispute or not

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CORJAYS05

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Hi all

I am the executor for my elderly Aunt who died a few months ago. For the last 15 years myself and 3 other relatives cared for my aunt. By caring I mean we looked after her healthwise, drove her to appointments, done shopping, paid for coal/oil, cooked dinners, looked after repairs in house, Basically anything she needed we done.

We were surprised when her solicitor revealed the terms of her will. She had left everything ( property worth C€500+ and €114K in savings) to her nephew , grandnephew and grandniece in America. She would have only met this nephew twice in her lifetime so we were surprised that my Aunt chose him and left nothing to her nieces and nephews here in Ireland who cared for her and were a big part of her life. I would say though that my aunt was of sound mind right up to the end so I respected her wishes. Two things that stuck out for me on the will was that she had included the grandniece and grandnephew ( whom she never even met) and also included their middle names on the will, when in all honesty I would have thought she wouldnt have even known their first names let alone their middle names. I also would have thought that middle names of beneficiaries are not usually put on wills in Ireland.

Fast forward to last week I was going through some of the paperwork in her house and found an envelope sent by registered post from the my cousin ( the beneficiary) in America. The envelope contained a letter and a copy of an email the cousin had sent to my aunts solicitor detailing what should be put on her will. The letter instructed my Aunt to take the envelope to the solicitor, check that it matched what the solicitor had on the will and to sign the will. The contents of the envelope do match her final will. Naturally I'm annoyed about this as Im convinced by Aunt was influenced or led by my cousin to leave her estate to him.

Am I right in saying that the solicitor should never have acted on his instructions? My concern is that as my Aunt was of sound mind that the courts would see her signing of the will as agreement. I dont want to waste time or money pursuing this if there is no chance but at the same time I think its unfair that he and his family get everything. Hes already a rich guy and now his family is going to be even richer but he showed no concern for her over the years at all.

I will of course consult an independent solicitor for advice. My question is though has anyone here being through anything remotely similar and what was the outcome?
 
Couple of points:

First, the executor can't challenge the will. The executors job is to administer the will as written; if you want to challeng the will you can't also act as executor of the will, because there would be a conflict of interest there. So if you want to challenge the will you have to decline to act as executor, and let someone else do be appointed as administrator. If your other relatives in Ireland are minded to support the challenge then they can't take on the administrator role. Realistically, it would have to be the nephew in the US or someone acting on his behalf.

(I mention this because, if you have haven't already taken out a grant of probate as executor, you might want to put a hold on that while you consider your position.)

Secondly, if you are going to challenge the will, you'll need advice from a solicitor who isn't the solicitor who drafted the will.

And the main point: obviously, the letter/email you found was sent in the context of a wider relationship/correspondence involving your aunt, the US nephew and the solicitor. US nephew may have emailed solicitor saying what he wanted in the will but solicitor would not act on that unless Aunt told him to, and aunt must have had her reasons for leaving her estate to US nephew and his family. Those reasons may have involved undue influence exerted by US nephew; on the other hand, they may not. At this point, we don't know.

It's possible, for example that aunt decided, for reasons which seemed good to her, to leave her estate to US nephew, and then corresponded with him about this, and in the course of that correspondence he suggested a particilar way of doing that that would work well from a US tax point of view, or meet some other objective or desire about this, and she asked him to correspond directly with her solicitor about that and told her solicitor that she wanted the will drawn up as suggested by the US nephew.

I think you need to dig a bit further and see if you can find any of the more correspondence of which this item formed a part. If US nephew did put pressure or exert influence, how? They hardly ever met; was their a regular correspondence, or emails, or phone calls? In a challenge, the onus will be on you to establish impropriety, and it won't be easy. The letter you have found is odd, but on its own its not enough; it's capable of an innocent explanation.
 
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ClubMan said:
Bear in mind that your aunt's estate was hers alone to pass on in whatever way she decided.
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Yes Im fully aware of that and also as I said she is was of sound mind right up to the end. But at the same time a beneficiary emailing a solicitor what the terms of their Aunts will should be doesnt seem right. I dont want to go down a long, expensive legal road on this if there is no chance of proving shenanigans. I havent even told other family members this yet and Im not sure if I will - I know some of them will go nuclear on this.
 
CORJAYS05 said:
TomEdison said:
Couple of points:

First, the executor can't challenge the will. The executors job is to administer the will as written; if you want to challeng the will you can't also act as executor of the will, because there would be a conflict of interest there. So if you want to challenge the will you have to decline to act as executor, and let someone else do be appointed as administrator. If your other relatives in Ireland are minded to support the challenge then they can't take on the administrator role. Realistically, it would have to be the nephew in the US or someone acting on his behalf.

(I mention this because, if you have haven't already taken out a grant of probate as executor, you might want to put a hold on that while you consider your position.)

Secondly, if you are going to challenge the will, you'll need advice from a solicitor who isn't the solicitor who drafted the will.

And the main point: obviously, the letter/email you found was sent in the context of a wider relationship/correspondence involving your aunt, the US nephew and the solicitor. US nephew may have emailed solicitor saying what he wanted in the will but solicitor would not act on that unless Aunt told him to, and aunt must have had her reasons for leaving her estate to US nephew and his family. Those reasons may have involved undue influence exerted by US nephew; on the other hand, they may not. At this point, we don't know.

It's possible, for example that aunt decided, for reasons which seemed good to her, to leave her estate to US nephew, and then corresponded with him about this, and in the course of that correspondence he suggested a particilar way of doing that that would work well from a US tax point of view, or meet some other objective or desire about this, and she asked him to correspond directly with her solicitor about that and told her solicitor that she wanted the will drawn up as suggested by the US nephew.

I think you need to dig a bit further and see if you can find any of the more correspondence of which this item formed a part. If US nephew did put pressure or exert influence, how? They hardly ever met; was their a regular correspondence, or emails, or phone calls? In a challenge, the onus will be on you to establish impropriety, and it won't be easy. The letter you have found is odd, but on its own its not enough; it's capable of an innocent explanation.
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Thank you. You have raised very valid points. Its hard to know what happened. Phone calls prove nothing really in that it cant be proven what was said. All I have is this letter. I was very close to my aunt and she very rarely mentioned this guy so I wasnt aware that they were in contact at all. I contacted him already and told him the 'good news' and naturally hes delighted, surprised, shocked, he had no idea he meant so much to her yadda, yadda. It now seems though he was aware of the terms of her will all along.

I think I am just going to have faith that she done this for a good reason and carry out her wishes.
 
DeeKie said:
What’s the downside in asking him straight out to explain the correspondence? I would also tell everyone about it.
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Yes I could email him and ask him - I doubt he will reply though or he will just give me some spoof story as to why he sent the email.

As regards telling the family I think Clubman is quite right - In my role as executor I have to be discreet. As you can imagine some of the family are quite annoyed - it has always been understood that my Aunts estate was going to be divided among all her nieces and nephews ( 14 in total). She had discussed this before but obviously never acted on it or was fooling everyone. We were also under the impression that she had very little or no money so some of us were paying for heating oil, shopping etc for her but she had €114K in the bank!. Im reluctant to reveal what I found as I know the trouble will start straight away with certain family members. My view is that she agreed and signed the will in full health both mind and body which is the relevant factor. I do think that possibly she could have been spun a story by this guy either his - financial woes, sentimental ( that he would keep the house in the family) or promised to take care of her - none of this can be proven though.
 
circle said:
I Is there any chance that this nephew was a secret son? Stranger things have happened.
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That possibility also crossed my mind…

Anyway, on the basis of the facts presented, I don’t see any basis for challenging the will.

And I don’t see any reason for stepping aside as executor. Absent some other relevant information, that’s what your Aunt wanted. Why wouldn’t you honour her wishes?
 
I don't see any harm in the OP, as designated executor, approaching the solicitor and saying something like "Look, the terms of the will came as a bit of a suprise — and disappointment — to a lot of the family, as Aunt had led them to expect a division of her estate among the whole family. And, when I rang US nephew to tell him what the will said, he expressed surprise, but now I find this correspondence which suggests that he was intimately involved in drawing up the will, knew all about it and corresponded directly with you about it. I am concerned that some family members may challenge the will, alleging undue influence or something of the kind. I'm a bit concerned about the senstivities of my own position as executor if there is a challenge. Can you cast any light on what went on here?"

The solicitor shouldn't have acted (and presumably didn't act) for Aunt in relation to the preparation and execution of the will unless he was happy that she was fully mentally competent, not acting under duress or improper influence, etc, etc. So any light he can cast on this is likely to put the correspondence the OP has found in a context which supports the validity of the will. It would be comforting for the OP to have the solicitor's perspective in advance of any challenge or objection that others might bring. And of course there is a slim possibility that what the solicitor might say would lead the OP to decline the executorship, in which case, the sooner he hears what the solicitor has to say, the better.

On the question of whether the OP should tell family members about the correspondence he found, I agree with ClubMan. The OP has access to the Aunt's papers and records in his role as designated executor, and the information he gets because of that access should only be used for the purpose of administering the will, not for fomenting challenges against it.
 
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CORJAYS05 said:
Fast forward to last week I was going through some of the paperwork in her house and found an envelope sent by registered post from the my cousin ( the beneficiary) in America. The envelope contained a letter and a copy of an email the cousin had sent to my aunts solicitor detailing what should be put on her will. The letter instructed my Aunt to take the envelope to the solicitor, check that it matched what the solicitor had on the will and to sign the will. The contents of the envelope do match her final will. Naturally I'm annoyed about this as Im convinced by Aunt was influenced or led by my cousin to leave her estate to him.

Am I right in saying that the solicitor should never have acted on his instructions?
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Clearly your aunt had way more of a relationship with this nephew than you ever knew. Maybe he is the son of a favourite sibling. Your aunt must have had her reasons as to why she left everything to him/his family. Sometimes things are just baffling. Sometimes it's spite. Or the prodigal son syndrome, or the aunt may have harboured secret grievances against you all.

Your aunt is entitled to leave everything to whomsoever she wishes. Personally, I'd be raging if I'd looked after someone to the point of paying for their fuel and groceries in the belief that they were broke and it was all a lie. That's a deception by omission. And if there were hints/suggestions/discussions by your aunt leading you all to believe she was leaving her estate to her nieces/nephews it's even worse. In such circumstances, if it were me as executor I'd stand aside.

From the facts you've stated the registered letter might have been requested by your aunt, and it may have been in order to have clarify of names. There's nothing to suggest your aunt was not of sound mind, nor that she was unduly influenced. The solicitor was taking her instructions.
 
ClubMan said:
Is that acceptable behaviour for an executor?
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My siblings would never forgive me if on finding out such information I'd not divulged it. Only this month my brother was visiting and I gave him my probate file on my mother to go thru, he was aware of stuff I'd found as I informed all of them, but he'd not read some of the things I'd found or he'd forgotton about the details over time. Family secrets and details often come out after death. And I'm currently in another executorship (administrator) that is a fine mess as it's two estates with little money and lots of hassle.
 
MugsGame said:
Is there any legitimate claim on the estate from expenses covered by OP and family supporting aunt during her final years?
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No. Nobody is entitled to put a price tag on and invoice for their good deeds .retrospectively. In certain limited circumstances they can be deemed a contract with the deceased- eg a favourite nephew working a farm for 20 years on the understanding they would get the farm when the uncle died- but those don't apply here and are anyway hard to prove.

Challenging the will successfully would be very unlikely- there's nobody (spouse or child) with any legal rights.

Just do the job of executor or let someone else do it.
 
Bronte said:
My siblings would never forgive me if on finding out such information I'd not divulged it. Only this month my brother was visiting and I gave him my probate file on my mother to go thru, he was aware of stuff I'd found as I informed all of them, but he'd not read some of the things I'd found or he'd forgotton about the details over time. Family secrets and details often come out after death. And I'm currently in another executorship (administrator) that is a fine mess as it's two estates with little money and lots of hassle.
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Maybe you're creating or compounding these messes by not acting with discretion in your roles as executor/administrator? If there are two messy situations then maybe there's a common factor and it's not just bad luck?
 
@CORJAYS05 I empathise with your situation. My mother, when of sound mind, wrote a will putting everything in my brother's name even though I had cared for her, had her every Christmas, and spent a lot on fuel and food for her over the years. My time was the greatest resource she took from me. My brother probably did influence this decision. But she was brought up to believe that the eldest son is supposed to get everything. My brother believes this too, apparently. So, is the main benefactor in your story the eldest nephew? Is he the eldest son of her eldest brother? Albeit wrong, unfortunately many of the older generation are set in their ways about these things. I also learned with my mother that the more I did for her, the more she just viewed me as staff and my brother, living away, became a kind of glamorous prodigal son—deserving of more in her head.
 
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