Missing Wills

[PinkDalek]

... i) Would someone please confirm my (weak) understanding of intestacy rules

It would depend on a number of factors (including in which country the deceased lived, the size of the estate, the fact the deceased left a spouse etc) so this is probably the best place to start:

https://www.gov.uk/inherits-someone-dies-without-will

[Gersemi]

Thank you for the interesting debate.

ii) Is there anything that one can do officially when a will is known to exist, but the original cannot be found?

Pheid

A quick google suggests that the news is not good. In short the brother may well be able to make a claim.

Cross your fingers and hope the solicitor has the original will.

Gersemi

[swill453]

A quick google suggests that the news is not good. In short the brother may well be able to make a claim.

But if (assuming England/Wales) the size of the estate, after discounting any jointly-held assets, is less than £250,000 there may be nothing to claim.

Scott.

[Clitheroekid]

IF a signed copy of the 2006 will is proven to exist, BUT cannot be found, then the 1998 will is then null and void, but so is the 2006 will

No, that's emphatically not the case.

It's not uncommon for an original Will to be lost, and if a photocopy of the signed Will exists it can quite easily be admitted to probate.

[Lootman]

But if (assuming England/Wales) the size of the estate, after discounting any jointly-held assets, is less than £250,000 there may be nothing to claim.

Yes, I don't recall Pheid mentioning anything about assets held as joint tenants. Typically a married couple would hold their home in joint names, and very likely their bank account, and taxable savings and investments. Some other assets, like pensions and ISAs, are individually owned.

Pheid also hasn't mentioned IHT, so perhaps the estate isn't so big?

This entire problem could go away if the substantial majority of the estate can bypass probate because of joint tenancy. And then all that is needed is for the MIL to make a new will.

[Gengulphus]

We will ask the solicitor who prepared whether they have a signed copy of the will.

Don't just ask them that. Ask them more generally what they know about whether the will was signed and what happened to the signed will if it was.

There are no guarantees, but there are quite a few possible ways for their answers to resolve the issue. For instance, if they're able to say that arrangements were made to sign the 2006 will but those arrangements fell through and were never re-arranged, that would make a belief that the 2006 will was never in fact signed much more reasonable. Or it could be that they know that the 2006 will was deposited with one of the organisations that provide will storage services...

And I'm sure those aren't the only possibilities - so ask very generally for what they know about what happened to the 2006 will and see what it turns up.

Gengulphus

[melonfool]

Thank you for the interesting debate.

We will ask the solicitor who prepared whether they have a signed copy of the will.

Re: the brother situation. Both the 1998 and the 2006 will SPECIFICALLY exclude him from any inheritance. That is the explicit wishes of my MIL and late FIL.

However, IF a signed copy of the 2006 will is proven to exist, BUT cannot be found, then the 1998 will is then null and void, but so is the 2006 will and then the intestacy rules (again if I understand them correctly) will give the Brother rights, that neither the 1998, nor 2006 wills conferred.

i) Would someone please confirm my (weak) understanding of intestacy rules

ii) Is there anything that one can do officially when a will is known to exist, but the original cannot be found?

Regards

Pheid

How large is this estate?

Mel

[Lootman]

For instance, if they're able to say that arrangements were made to sign the 2006 will but those arrangements fell through and were never re-arranged, that would make a belief that the 2006 will was never in fact signed much more reasonable.

Or the solicitors might say that they prepared a draft 2006 Will and sent it to the FIL for review and signature. But then they never heard back. When shown the unsigned draft 2006 Will that Pheid has, they might confirm that was what they drafted. But it still means that they have no actual knowledge about whether or not the Will was ever signed or witnessed correctly.

Or, of course, they may not know anything about it at all.

In both cases, Pheid is no further along in his journey of discovery, and still has the dilemma of whether to decide that there isn't enough evidence for a determination that there was ever a valid 2006 Will.

Where it will help is if there is a definitive answer either way, either "Yes, here is a valid signed copy of the 2006 Will" or "Yes, we prepared it but they never signed it".

[Clitheroekid]

For instance, if they're able to say that arrangements were made to sign the 2006 will but those arrangements fell through and were never re-arranged, that would make a belief that the 2006 will was never in fact signed much more reasonable.

Or the solicitors might say that they prepared a draft 2006 Will and sent it to the FIL for review and signature. But then they never heard back. When shown the unsigned draft 2006 Will that Pheid has, they might confirm that was what they drafted. But it still means that they have no actual knowledge about whether or not the Will was ever signed or witnessed correctly.

Or, of course, they may not know anything about it at all.

In both cases, Pheid is no further along in his journey of discovery, and still has the dilemma of whether to decide that there isn't enough evidence for a determination that there was ever a valid 2006 Will.

Where it will help is if there is a definitive answer either way, either "Yes, here is a valid signed copy of the 2006 Will" or "Yes, we prepared it but they never signed it".

Quite so.

And in view of the moderator's quite justified comments might I suggest that we stop speculating and await the result of Pheid's enquiries with the solicitors?

[Lootman]

Quite so. And in view of the moderator's quite justified comments might I suggest that we stop speculating and await the result of Pheid's enquiries with the solicitors?

Agreed, except that the point Gengulphus was making was to discourage Pheid from asking a narrow and specific question: "We will ask the solicitor who prepared whether they have a signed copy of the (2006) will". And instead ask a broader, more open-ended question.

Whereas I had argued previously for a narrower and more specific question like Pheid is considering, with follow-up questions as necessary (*)

Which approach to adopt is something that Pheid needs to decide BEFORE he has that discussion, and so it does seem legitimate to discuss that here and now. In any event, I took the Mod to be talking more about our digressions about perjury, murder etc.

(*) I was once very expensively coached by a "testimony expert" for an appearance as a witness for the defence in a fairly big (millions) civil case. There are a number of pieces of advice I was given at the time, but one was that the defence lawyer would object to any questions that were overly broad or that call for narrative. Questions should be narrow and precise, ideally calling for Yes/No answers. And responses should address only the question and nothing more.

Overkill for just a chat, you will probably say. But personally whenever I think there is a chance of legal problems down the road, I remember that advice and don't engage in broad chats. Every word is carefully chosen.

[Gengulphus]

Questions should be narrow and precise, ideally calling for Yes/No answers. And responses should address only the question and nothing more.

Quite correct, in an adversarial situation like giving evidence. And IMHO thoroughly inappropriate when one is asking for help, as in this case.

Gengulphus

[Pheidippides]

I'll try to answer all the questions:

Country of residence etc - England

Estate size: Let me answer it this way.

Assets: 1 House, held as tenants-in-common - 420K
Shares - held in (deceased) FIL name - 10K
Cash ISA - held in (deceased) FIL name - 100K
Cash ISA - held in MIL (alive and well) name - 100K

Outcomes:

Find original signed copy of 2006 will - Best outcome
Find copy of signed 2006 will (solicitor) - Per CK, can proceed with that

if not:

Register original 1998 will - possibly perjorous

or

Intestate

At this juncture, based on Gengulphus' sage advice I will ask the preparing solicitor the following questions.

Are you aware of whether the 2006 will WAS actually signed?
If yes - do you have a copy / was it registered?

Regards

Pheid

[melonfool]

I'll try to answer all the questions:

Country of residence etc - England

Estate size: Let me answer it this way.

Assets: 1 House, held as tenants-in-common - 420K
Shares - held in (deceased) FIL name - 10K
Cash ISA - held in (deceased) FIL name - 100K
Cash ISA - held in MIL (alive and well) name - 100K

House - only 50% is 'counted' (assuming TIC at 50/50 shares), so £210k, plus £10k, plus £100k. (FIL estate, ignoring MIL estate)

So, the assets after the £250k that goes directly to the spouse (MIL) under the intestacy laws is £70k, which would then be split 50% to the MIL, and the other 50% divided equally between the sibs.

So, 50% of £70 = £35k split....is it three or two ways? Anyway.....is this really worth all the angst? I'm not suggesting that proper processes are bypassed to try to find the will but just that if you have to resort to intestacy, for the sake of, what £10k? is it worth potentially perjuring yourself/whomever?

The bigger issue here is MIL's will - it will be when she goes that assets are worth thinking about. So, I'd get onto making her a new will, no matter what.

Mel

[swill453]

Estate size: Let me answer it this way.

Assets: 1 House, held as tenants-in-common - 420K
Shares - held in (deceased) FIL name - 10K
Cash ISA - held in (deceased) FIL name - 100K
Cash ISA - held in MIL (alive and well) name - 100K

So (making many assumptions, possibly wrong), if intestate then brother would be entitled to £17.5K

EDIT: Mel beat me to it!

Scott.

[Clitheroekid]

Register original 1998 will - possibly perjorous

No, you need to understand that when an executor swears their oath they are only swearing that they believe that the Will they're submitting for probate is the last one prepared by the deceased. It's not a statement of fact, it just means that their belief is based on reasonable enquiries having been made, and in your case this will clearly have been done once the solicitors have been contacted.

It would only be potentially perjurous if either the executor knew it wasn't the last Will or if they had not made any enquiries at all.This cannot possibly apply in your case, so stop worrying!

or

Intestate

I can't see how the question of intestacy could ever arise, as if it turns out there isn't a 2006 Will after all the 1998 Will seems perfectly OK.

At this juncture, based on Gengulphus' sage advice I will ask the preparing solicitor the following questions.

Are you aware of whether the 2006 will WAS actually signed?
If yes - do you have a copy / was it registered?

There's no need to be so specific, and in any case there's no process of `registration' for Wills. Just explain that the FIL has died, that you're looking for his Will, that you found the draft prepared by them and please would they check their records. They will be used to receiving such enquiries, and will know how to deal with them.

[swill453]

I can't see how the question of intestacy could ever arise, as if it turns out there isn't a 2006 Will after all the 1998 Will seems perfectly OK.

What if the solicitor comes back with "yes there is definitely a signed 2006 will, but we don't have it or a copy"?

Scott.

[Clitheroekid]

I can't see how the question of intestacy could ever arise, as if it turns out there isn't a 2006 Will after all the 1998 Will seems perfectly OK.

What if the solicitor comes back with "yes there is definitely a signed 2006 will, but we don't have it or a copy"?

Scott.

That would be very unlikely, as how would the solicitors know the Will had been signed if there was no copy on the file?

However (and I realise I'm breaking my own rule about speculation here!) depending on the evidence available from the solicitors it may still be possible to have the draft Will admitted to probate. The executor's oath would contain detailed evidence from the solicitors that they believed that the FIL had validly executed a Will in the form of the draft but that the original had been lost and there were no signed copies.

[melonfool]

I can't see how the question of intestacy could ever arise, as if it turns out there isn't a 2006 Will after all the 1998 Will seems perfectly OK.

What if the solicitor comes back with "yes there is definitely a signed 2006 will, but we don't have it or a copy"?

Scott.

That would be very unlikely, as how would the solicitors know the Will had been signed if there was no copy on the file?

However (and I realise I'm breaking my own rule about speculation here!) depending on the evidence available from the solicitors it may still be possible to have the draft Will admitted to probate. The executor's oath would contain detailed evidence from the solicitors that they believed that the FIL had validly executed a Will in the form of the draft but that the original had been lost and there were no signed copies.

I *suppose* it could be possible that it was signed in front of a witness in the solicitor's office (admin people sometimes get this task I think?) and then taken away, so the solicitor may be able to say it definitely was signed, but that they do not have a copy.

Mel

[Lootman]

I *suppose* it could be possible that it was signed in front of a witness in the solicitor's office (admin people sometimes get this task I think?) and then taken away, so the solicitor may be able to say it definitely was signed, but that they do not have a copy.

If a Will is signed and witnessed at a solicitor's office then it's almost certain that the office would insist on making a copy of it, especially if you are taking it away with you and not using the office for safe-keeping (which they usually try and sell you on).

So I think CK is correct here, and the only problem arises if the Will was sent to FIL for review and signature and than the solicitor never heard back. In that case the solicitor should respond to Pheid's question in the negative, meaning that they have a reasonable doubt that the 2006 draft Will was ever made valid.

And that should be sufficient to justify a reasonable belief on Pheid's part that the 1998 Will can be executed, absent any other new information.

[Lootman]

Questions should be narrow and precise, ideally calling for Yes/No answers. And responses should address only the question and nothing more.

Quite correct, in an adversarial situation like giving evidence. And IMHO thoroughly inappropriate when one is asking for help, as in this case.

Well, Pheid would not be going to this solicitor for "help" so much as for information. He's already stated that he does not intend to seek the help of a solicitor to execute the Will (whichever one is used).

There was some previous talk of a non-zero risk of perjury being alleged in one scenario. In that event, the discussion with the solicitor could be made available as evidence against Pheid. And that is why I suggested some measure of circumspection on Pheid's part.

That said, if there is any worry, then the discussion could be structured so as to be privileged, in which case it could not be used in evidence unless Pheid waived that privilege (or for some other reasons to do with fraud or money laundering). I don't claim to fully understand that topic but the Law Society guidelines on professional privilege are here:

http://www.lawsociety.org.uk/support-se ... h6whendisc