There are a number of ways to challenge the validity of a will. The most common is to challenge the “capacity” of the person making the will who you would argue lacked the mental ability to make one, often due to illness or cognitive frailty.
Another potential challenge is duress or undue influence whereby it is claimed a person was forced against their true wishes to make a particular gift.
A close relation of this type of challenge is the legal concept of “fraudulent calumny”. In order to successfully plead fraudulent calumny, you must show that Party A poisons the mind of the person making the will with a lie about Party B which causes the person making the will to exclude Party B from the will.
In addition, Party A must know they are lying or not care about the truth of what they assert.
Here you have two potential calumny. First is the assertion you were only caring for your step-dad in order to inherit. Your step-brothers should be asked for objective evidence of that, as otherwise it seems like a lie designed to cast you in a bad light.
Second, it is factually incorrect to say you were to receive everything under the wills made by your mum and step-dad, as in fact those wills provided for the estate to be split between the two families. Telling your step-dad you were going to get the lot was definitely not true and whether his sons believed it or not, it was reckless of them not to check that fact.
Absolutely central to your case is evidence from the carers so I would approach them as soon as possible and have their statements put on record before they decide they do not wish to be involved, or their memories fade.
The good news is I think you have a potentially powerful case. You will require formal legal support and I would urge you to take that and plan a strategic approach. In all litigation, setting out a robust argument backed up by evidence is the optimum start to any correspondence with the other side. I hope you give your step-dad’s sons the shock of their lives by contacting them to set out your claim.
In the meantime, if a “grant of probate” has not yet been issued in respect of your step-dad’s will, lodging a caveat at the Probate Registry (which costs £3) will effectively block the disputed will progressing further. This tactical move will give you time to assemble your case and also jolt your step dad’s sons into realising this matter is not all going their way.
Ask a Lawyer is written by Gary Rycroft, solicitor at Joseph A Jones & Co, and published twice a month on Mondays. Email your questions to [email protected]