Missing Wills

[Gengulphus]

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).

For goodness' sake! Nobody has suggested asking them for help to execute the will, so how on earth you think it's reasonable to interpret my "asking for help" that way I don't know. As CK has said:

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.

That's a request (not an offer to use their professional services) that they check their records and (implicitly) reply with any information that check throws up that is likely to help you.

Or more briefly, asking for help.

Gengulphus

[Lootman]

Nobody has suggested asking them for help to execute the will, so how on earth you think it's reasonable to interpret my "asking for help" that way I don't know.

I think this discussion is getting unnecessarily pedantic. My point was simply that, insofar as there is any risk of an allegation of perjury in the future, then Pheid needs to keep in mind that conversations he has with others in this matter can be later used against him in a court of law.

With that in mind, I would keep the questions short, simple and factual. The goal is to either find a valid 2006 Will that Pheid can execute, or confirm his reasonable doubt that a valid 2006 Will exists so that Pheid can credibly swear an oath with the 1998 Will.

Unless the discussion can be framed within the bounds of professional privilege, of course, in which case the discussion can be more relaxed and general. There's an important distinction between talking to your own lawyer and talking to somebody else's lawyer.

[Gersemi]

The goal is to either find a valid 2006 Will that Pheid can execute, or confirm his reasonable doubt that a valid 2006 Will exists so that Pheid can credibly swear an oath with the 1998 Will.

But surely Pheid won't be executing any will? He isn't named as executor in either will. If they are trying to execute the 1998 will MIL is the executor and Pheid said that MIL was sure the 2006 wills had been signed. As she and FIL presumably signed them together in front of their witnesses it is hard to see how she can honestly swear that she believes the 1998 will is the last one.

Gersemi

[swill453]

The goal is to either find a valid 2006 Will that Pheid can execute, or confirm his reasonable doubt that a valid 2006 Will exists so that Pheid can credibly swear an oath with the 1998 Will.

But surely Pheid won't be executing any will? He isn't named as executor in either will. If they are trying to execute the 1998 will MIL is the executor and Pheid said that MIL was sure the 2006 wills had been signed. As she and FIL presumably signed them together in front of their witnesses it is hard to see how she can honestly swear that she believes the 1998 will is the last one.

I made that exact point to Lootman 6 days and 3 pages ago. It's getting rather repetitive here.

Scott.

[Lootman]

But surely Pheid won't be executing any will? He isn't named as executor in either will. If they are trying to execute the 1998 will MIL is the executor and Pheid said that MIL was sure the 2006 wills had been signed. As she and FIL presumably signed them together in front of their witnesses it is hard to see how she can honestly swear that she believes the 1998 will is the last one.

It's clear that Pheid is the one engaging in the discovery here, and that he will be driving the decisions and actions that ensue. So it doesn't matter for the point I was making whether the MIL is the actual and eventual executor, or whether she renounces and Pheid does it. Pheid is the one asking for advice here and so is acting as a de facto executor. Who will swear the oath hasn't been decided yet and is surely part of the strategy that the family decides to adopt.

And we don't know if MIL and FIL signed the 2006 Will. That's the entire point here. FIL isn't around to ask. MIL claims to recall that but is 83 and "not fully competent". And there is no physical evidence to indicate that it was ever signed. If the solicitor in question cannot testify that he ever saw a signed Will, then that is the basis of the reasonable doubt about it that might cause the family to execute the 1998 Will.

[Lootman]

As she and FIL presumably signed them together in front of their witnesses it is hard to see how she can honestly swear that she believes the 1998 will is the last one.

You made me think of something else. I don't think anyone has mentioned this yet (but it's a long thread and I may have missed it). If the MIL is claiming a clear recall of signing the 2006 Will, then she should probably have a clear recall of who witnessed it. And the entire point of those witnesses is to be able to later testify about the signing of that Will.

So Pheid should ask the MIL who they were. If she recalls them, then they can be asked about it. The witnesses would not normally be beneficiaries and so are outside the family and not affected by the outcome here. Whilst if she does not recall who they were, then that confers further doubt on the accuracy of that recollection which, at the moment, is the only piece of evidence that points to there being a valid 2006 Will.

I'd probably ask the MIL some other questions, like where the Will was signed, and when it was signed, in order to further build a picture of how reliable and accurate that recollection is. And it's possible that, as a result of those questions, she may revise her recollections, or at least her level of confidence in them.

[melonfool]

Yes, it has been mentioned.

Mel

[PinkDalek]

So it doesn't matter for the point I was making whether the MIL is the actual and eventual executor, or whether she renounces and Pheid does it. ... Who will swear the oath hasn't been decided yet and is surely part of the strategy that the family decides to adopt.

If the MIL, the sole appointed Executor of the 1988 Will, renounces (having not intermeddled) then is it not down to the court to appoint an administrator. If so, why would they would appoint the son in law, in preference to one of the issue (daughter or son!).

MIL claims to recall that but is 83 and "not fully competent". ...

The fuller version of that repeated extract of yours was "... MIL is not competent to fulfill the role of executor fully".

In a later post the OP said "MIL has all marbles, but is 83 and doesn't want to be executor" followed in another post with "MIL is willing (with Mrs P's support) [to] adopt the role of executor".



Wouldn't it be best to await the results of the solicitor enquiries, as has been said many a time on this thread (which now extends to five pages).

[Lootman]

If the MIL, the sole appointed Executor of the 1988 Will, renounces (having not intermeddled) then is it not down to the court to appoint an administrator. If so, why would they would appoint the son in law, in preference to one of the issue (daughter or son!).

Unlikely it would be the son, under the circumstances!

I never said the court would appoint an executor, and I'm not sure where you get that idea from. What I said is that if the MIL does not wish to act as executor, then she could nominate someone else to act. I was not aware that a court had to ratify such a decision. The only restriction that I was aware of, in choosing a substitute executor, is that they should not be a beneficiary of the Will. Pheid's wife is a beneficiary but he is not.

Pheid seems like the obvious alternate choice since he is the one taking responsibility for discovery here,

But the decision would also depend on who is comfortable taking what some here perceive as the risk of an allegation of perjury. A more cynical soul than me might think that the MIL is a good choice for that, since there is probably not a prosecutor in the land who would charge an 83 year old grieving widow, nor a jury that would convict one

Wouldn't it be best to await the results of the solicitor enquiries

Nobody has stated otherwise and certainly not me. I did however suggest that Pheid hold off on that until he had all the other facts and information that he needs. If it were me, I would seek to identify these witnesses first and get their version of events.

[Clitheroekid]

Unlikely it would be the son, under the circumstances!

Lootman, if you don't know the law in these situations it would be a good idea to do some basic research before making comments like this.

Where the sole executor of a Will is unable or unwilling to act they have no power whatsoever to appoint a substitute executor. Instead of an application for probate an application is made for `Letters of Administration with Will Annexed'.

As you may know, Letters of Administration is the grant applied for when there's an intestacy, and the right to apply for it adopts the same rules as those for intestacy.

This means that there is a hierarchy of people who are permitted to apply, in decreasing priority. The first category is the spouse (clearly not possible here) and the second category is the children.

This means that the only people who would be entitled to apply are the son and daughter. They each have an equal right, so if the son wanted to apply the court would give him a grant as of right.

I never said the court would appoint an executor, and I'm not sure where you get that idea from. What I said is that if the MIL does not wish to act as executor, then she could nominate someone else to act.

See above.

But the decision would also depend on who is comfortable taking what some here perceive as the risk of an allegation of perjury. A more cynical soul than me might think that the MIL is a good choice for that, since there is probably not a prosecutor in the land who would charge an 83 year old grieving widow, nor a jury that would convict one

You appear to be fixated on this absurd notion that anyone is at risk of committing perjury. They aren't, and your comment is beyond ridiculous.

I did however suggest that Pheid hold off on that until he had all the other facts and information that he needs. If it were me, I would seek to identify these witnesses first and get their version of events.

Fortunately, Pheid isn't you, and is capable of applying some common sense to the situation instead of imagining that he's enmeshed in some sinister and complex conspiracy!

[Lootman]

This means that the only people who would be entitled to apply are the son and daughter. They each have an equal right, so if the son wanted to apply the court would give him a grant as of right.

OK, fair enough. That is a problem then. I just didn't understand it the way PinkDalek described it.

You appear to be fixated on this absurd notion that anyone is at risk of committing perjury. They aren't, and your comment is beyond ridiculous.

Actually I never claimed there was a risk of perjury here. There were some others who did, and I was addressing their concerns. In fact I was the one dismissing that alleged risk.

Fortunately, Pheid isn't you, and is capable of applying some common sense to the situation instead of imagining that he's enmeshed in some sinister and complex conspiracy!

Well, Pheid did say at one point that "this is a clear case of making a potentially false statement with absolutely the correct and desired outcome." I took that at face value and was seeking to describe some tactics that might give that course of action a greater probability of success.

[chas49]

Moderator Message:
This thread has now answered the OP's questions I think, and should now be considered closed. If the OP has further questions, please ask them here.

[AJC5001]

Where the sole executor of a Will is unable or unwilling to act they have no power whatsoever to appoint a substitute executor. Instead of an application for probate an application is made for `Letters of Administration with Will Annexed'.

As you may know, Letters of Administration is the grant applied for when there's an intestacy, and the right to apply for it adopts the same rules as those for intestacy.

This means that there is a hierarchy of people who are permitted to apply, in decreasing priority. The first category is the spouse (clearly not possible here) and the second category is the children.

This means that the only people who would be entitled to apply are the son and daughter. They each have an equal right, so if the son wanted to apply the court would give him a grant as of right.

I was under the impression that the beneficiaries were next after any executors, at least that was the basis my OH applied to administer her fathers will. Also that explains how charities can get involved in administration, AIUI.

I'm not sure it helps, though.

Adrian

[Gengulphus]

It's clear that Pheid is the one engaging in the discovery here, and that he will be driving the decisions and actions that ensue. So it doesn't matter for the point I was making whether the MIL is the actual and eventual executor, or whether she renounces and Pheid does it. ...

On a point of legal detail, I'm pretty certain the latter is not a legal possibility.

What is possible is that if MIL renounces with regard to the 1998 will, and if Mrs Pheid declines to act with regard to the 2006 will (*), then Pheid can probably (**) step in. But if so, he applies for a Grant of Administration with Will Annexed, and if he gets it, he will be an administrator rather than an executor.

Which I'm fairly certain doesn't make much difference to the job - but one of the things it must make a difference to is exactly what the oath says, and the exact wording of the oath has been relevant at points in the above discussion...

(*) She could decline to act either in the belief that the 2006 will is valid or in the belief that it isn't. Regarding the latter as renouncing an executorship seems a bit odd - can you renounce something non-existent?

(**) "Probably" because it does depend on who else has the right to apply for it and whether they want to.

Gengulphus

[Pheidippides]

Hi All,

Again - thank you all for your opinions and guidance.

The Solicitors have no copy or record of that the 2006 will was ever signed.

MIL cannot recall who the witnesses might have been, and no definitive recollection that they were ever signed

Thus the 1998 wills are now honestly considered "live". MIL will be the executrix, even though Mrs Pheid will be doing all the donkey work.

Best regards

Pheid

[Gersemi]

Hi Pheidippides

Thanks for letting us know the outcome of your enquiries. I agree that having checked with the solicitors and MIL saying that she has no definite recollection of the 2006 wills being signed that it is reasonable to assume that the 1998 wills are in fact the last valid wills. Glad to hear you will be able to proceed on that basis.

It would still probably be a good idea for MIL to do a new will.

Gersemi

[JonE]

MIL cannot recall who the witnesses might have been

I'd have thought that this, on top of the info from the solicitors, was significant.

One needs to select independent witnesses fairly carefully taking account of provisions in the will, age relative to oneself, ease of getting both of them together for witnessing one's signature, likely traceability in the future and so on - it's not an inconsequential matter and the drafting solicitors were obviously not party to the witnessing. If the witnesses selected for the earlier wills were no longer considered to be good candidates for the 'new' wills then that should have prompted some head-scratching that might be expected to have left an impression. Similarly, contacting previous witnesses asking them to do the same again would probably also be remembered. If the cake needed icing then having those witnesses confirm that they hadn't done the same again would carry further weight.

Thanks for providing the wrap.

Cheers!

[melonfool]

MIL cannot recall who the witnesses might have been

I'd have thought that this, on top of the info from the solicitors, was significant.

One needs to select independent witnesses fairly carefully taking account of provisions in the will, age relative to oneself, ease of getting both of them together for witnessing one's signature, likely traceability in the future and so on - it's not an inconsequential matter and the drafting solicitors were obviously not party to the witnessing. If the witnesses selected for the earlier wills were no longer considered to be good candidates for the 'new' wills then that should have prompted some head-scratching that might be expected to have left an impression. Similarly, contacting previous witnesses asking them to do the same again would probably also be remembered. If the cake needed icing then having those witnesses confirm that they hadn't done the same again would carry further weight.

Thanks for providing the wrap.

Cheers!

Eh?

My neighbours at my flat, which was five homes ago, signed my first will. They didn't sign me next one because I have no idea where they are. No head scratching required. New neighbours signed my current one and once I have moved and sort out the next will they won't be witnessing that one as they will no longer be neighbours and it'll be a couple of hours drive to where they live.

You do know witnesses only witness the signature, don't you? They can be anyone. Often a work colleague, I've just witnessed a signature on a mortgage for a work colleague.

Mel

[Lootman]

My neighbours at my flat, which was five homes ago, signed my first will. They didn't sign me next one because I have no idea where they are. No head scratching required. New neighbours signed my current one and once I have moved and sort out the next will they won't be witnessing that one as they will no longer be neighbours and it'll be a couple of hours drive to where they live.

You do know witnesses only witness the signature, don't you? They can be anyone. Often a work colleague, I've just witnessed a signature on a mortgage for a work colleague.

Yes, and in fact I recently witnessed my neighbours signing their Will. I don't expect any future duties arising from that.

When I signed a Will at a solicitor's office, he just asked his secretary to witness my signing. For all we know, she might have left that job the week afterwards and emigrated. If she had been out at lunch perhaps my solicitor would have dragged someone in off the street to be a witness?

More important is probably who you don't choose for a witness, like a beneficiary of the Will.

All that said, it can sometimes be useful to be able to track down the witness later, as in this case.

[JonE]

More important is probably who you don't choose for a witness, like a beneficiary of the Will.
All that said, it can sometimes be useful to be able to track down the witness later, as in this case.

My mention of having regard to provisions of the will and reference to 'independent' witnesses was intended to cover beneficiaries not being chosen as witnesses.

A major point (perhaps the major point) of having witnesses is so that they can speak after your death if queries or challenges arise. Affidavits may be required to address issues raised by awkward bods (not competent, undue pressure, etc.). That means you should choose independent, sighted witnesses who are not minors, who give a decent impression of being of sound mind at the time, are likely to outlive you and that stand a chance of being traced if necessary.

Wills seem to attract disputes (the larger the estate the more bitter the dispute, it seems) and having witness affidavits helps to fight off trouble-makers. One can take a cavalier approach to choosing witnesses but it seems a tad reckless to construct a will that should achieve one's objectives but to leave it more open to challenge than it need be by not taking the matter of witnesses seriously.

I'd supposed that OP's MiL & Fil had, given the estranged, disinherited child who could possibly kick up a fuss, made sure that they'd chosen witnesses carefully to help withstand any attacks he might make.

Cheers!