Issuing Court Proceedings

[jaycee401]

I am involved in a dispute. The allegations are towards coercion and mental capacity of a will. The disputer has not come forward with any facts. I have now gathered witness statements which are all in my favour, professional bodies included. My solicitor is now saying we will instruct a barrister to make an application to court. Is this the correct way to do things, surely its down to the person making the allegations to take it to court, as stated in his one and only solicitors letter demanding if I did not agree to have the will revoked he would issue court proceedings!! It will cost me to instruct a Barrister and pay for the court application, why should I do that when he is the one instigating things? He has placed a caveat on probate assuming coercion and mental capacity. any advice would be much appreciated.

[woofgang]

Not an expert, but that is my understanding too, that the burden of proof lies with the accuser.

[Barmaid]

There are other ways of doing things, but this is certainly one of the recognised ways. It should not be too costly since all you will be seeking is proof of the Will in solemn form at law. I would get your solicitor to instruct Counsel and see what views Counsel has.

In terms of the burden of proof, if someone disputes a Will on the grounds of testamentary capacity the person propounding the Will (this means proving - so in this case, you) must prove that the deceased had testamentary capacity. HOWEVER in terms of undue influence (which is what you mean by coercion), the person alleging undue influence must prove it. It is an extremely high hurdle as well.

[jaycee401]

Many thanks for the replies. Very helpful. Luckily we have 5 witness statements stating that he was of sound mind when he wrote the will, including one from his nurse. We have seen no evidence from the other side re coercion, although he is trying to say that I was in the room when the will was witnessed, which is untrue.

[Barmaid]

Doesnt matter if you were in the room imho.

The key to this type of case is a) solicitor records, b) medical records and c) witness evidence.

Your solicitor sounds like he has a handle on it.

[jaycee401]

Thank you Barmaid. Much appreciated.

[jaycee401]

Received an email from our solicitor today saying we can apply to get the Caveat overturned but this is an application which we would need a barrister to draft. There is no way to force them to issue proceedings, the best we can do is apply to have the caveat removed at court and this itself may make them issue proceedings if that is what they wish to do.
Would it not be worthwhile to send the other side a letter first warning them of this, as then may make them issue the proceedings or are we best just going ahead with the application?
It seems so wrong he can put the caveat on and then sit back and do nothing and we have to pay out to get it sorted! What would happen if we had no money to fight this?