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Missing Wills

including wills and probate
Pheidippides
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Missing Wills

#23808

Postby Pheidippides » January 17th, 2017, 4:01 pm

Situation:

Rather-In-Law (FIL) and MIL make mirror wills in 1998.

FIL will makes MIL sole Executrix unless she predeceases (which she hasn't)

All assets pass to MIL - so nice and easy


FIL Mrs Pheid and Me joint executors if she doesn't predecease

Will distribution 50% Mrs Pheid, 50% split between the (two) Pheid-lets (in trust until their 25), Mrs Pheid's estranged brother deliberately excluded


We are sure that there is a 2006 will:

FIL will makes Mrs Pheid Executrix

All assets pass to MIL (if no predecease) - so nice and easy
Will distribution 1/3 Mrs Pheid, 2/3 split between the (two) Pheid-lets


We have the signed original copies of the 1998 will (you probably have guessed where this is going....)


Three problems: the original 2006 wills have completely disappeared and MIL is not competent to fulfill the role of executor fully. We have been told that these wills were signed, but Mrs Pheid has never seen a signed copy and therefore is not COMPLETELY sure that they have ever been signed.

Second problem: MIL is probably not the right person to act as executor, and nor does she wish to


In theory we could use the 1998 will, and assist MIL in her executor duties, then re-write the wills/add a codicil. Is there anything wrong with this approach. In short we BELIEVE that there is another will but we don't KNOW - would it change if we KNEW?

Regards

Pheid

swill453
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Re: Missing Wills

#23819

Postby swill453 » January 17th, 2017, 4:27 pm

I'm a bit confused. Has someone died? You don't say so.
FIL will makes MIL sole Executrix unless she predeceases (which she hasn't)
...
FIL Mrs Pheid and Me joint executors if she doesn't predecease

These statements seem to contradict each other.
All assets pass to MIL - so nice and easy
...
Will distribution 50% Mrs Pheid, 50% split between the (two) Pheid-lets (in trust until their 25)

As do these - how can all assets go to MIL, but there are also distributions to other people.

Scott.

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Re: Missing Wills

#23862

Postby WessexMario » January 17th, 2017, 6:11 pm

your "Situation" is a bit confusing, but I get the gist.

Has FIL died?

If you can't find the 2006 will and aren't even sure it was ever signed then you'll have to work with the valid 1998 will.
If all the beneficiaries agree, then you could vary the will, but even more practically MIL could just gift the 1/6 that she doesn't want/need to the Pheid-lets.

If MIL does not want to be executor and has not meddled in the estate (doesn't sound like she has, or will) then she can simply renounce.
Someone else (you?) can then step in and perform the executorship.

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Re: Missing Wills

#23864

Postby WessexMario » January 17th, 2017, 6:14 pm

If all the beneficiaries agreed to vary the 1998 will to what they believe the intentions of the 2006 will were, then even if the 2006 will turned up and was signed and valid, then it would make no difference as the distributions would be the same anyway.

PinkDalek
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Re: Missing Wills

#23868

Postby PinkDalek » January 17th, 2017, 6:22 pm

Pheidippides wrote:...


We are sure that there is a 2006 will: ...

Three problems: the original 2006 wills have completely disappeared and MIL is not competent to fulfill the role of executor fully. We have been told that these wills were signed, but Mrs Pheid has never seen a signed copy and therefore is not COMPLETELY sure that they have ever been signed. ...


Have you been able to find any correspondence with whomsoever was drafting the 2006 Wills?

What enquiries have been made of local solicitors?

Who has told you that the 2006 Wills were executed?

Clitheroekid
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Re: Missing Wills

#23925

Postby Clitheroekid » January 17th, 2017, 8:35 pm

Pheidippides wrote:We are sure that there is a 2006 will:

Then you can't just ignore the possibility that it exists. It's part of an executor's obligations to use all reasonable efforts to locate a valid Will.

If your FIL (who I'm assuming has popped his clogs) did make a 2006 Will it will have revoked the 1998 one, so that it is no longer valid. To try and probate a Will that you aren't sure is valid is potentially committing perjury.

We have been told that these wills were signed

Who told you? Your MIL must surely know whether or not they were signed, so I'm assuming from your comments that she's lost mental capacity. However, assuming the 2006 Wills were prepared by solicitors the easiest solution is just to contact them. The chances are that if the Wills were signed they're lodged with the solicitors anyway.

MIL is not competent to fulfill the role of executor fully.
MIL is probably not the right person to act as executor, and nor does she wish to

This is obviously only an issue if you can't establish that the 2006 Will was signed.

But which is it? Either she's lost mental capacity, in which case she can't act and her wishes are irrelevant or she has capacity but doesn't want to act.

If it's the former it's a problem. If she has an LPA in force the attorney(s) can apply on her behalf. If not, then you may have to arrange for a `deputy' to be appointed via the Court of Protection, which is a tedious and relatively complicated process.

If she could act, but just doesn't want to then she could either appoint an attorney (and it would be a good idea for her to make an LPA anyway) or she could renounce probate, in which case your wife could apply to the Court to be appointed administrator of the estate. It's fairly straightforward.

In theory we could use the 1998 will, and assist MIL in her executor duties, then re-write the wills/add a codicil. Is there anything wrong with this approach. In short we BELIEVE that there is another will but we don't KNOW - would it change if we KNEW?

As I've said, you can't simply choose which Will to use. If the 2006 Will exists then it must be used. If you knew it existed but concealed its existence and probated the 1998 Will you would be committing a criminal offence.

chris
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Re: Missing Wills

#24105

Postby chris » January 18th, 2017, 12:10 pm

Sorry - is it just me who doesn't understand the 'distribution' in the will?

Pheidippides wrote that all assets pass to MIL so nice and simple but then goes on to say that the will divides the assets 50% to Mrs Pheid who I assume is his wife and 25% each to their kids.

Is there something I have missed or is this a case where the first will passes all assets to the surviving spouse but the second part of the will provides for circumstances where they both die and who gets the assets then?

Lootman
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Re: Missing Wills

#24152

Postby Lootman » January 18th, 2017, 2:52 pm

Clitheroekid wrote:Then you can't just ignore the possibility that it exists. It's part of an executor's obligations to use all reasonable efforts to locate a valid Will.

As I've said, you can't simply choose which Will to use. If the 2006 Will exists then it must be used. If you knew it existed but concealed its existence and probated the 1998 Will you would be committing a criminal offence.

Indeed but, having made all reasonable attempts to locate the 2006 Will and failed, then what? There may be a copy of the 2006 Will at a local solicitor's office, as you suggest. But if it is not a signed original then it's really just a working draft and presumably could not be executed anyway.

I agree that the 1998 Will cannot be used if the 2006 Will is known to exist. But that just leaves the default as there being no valid Will at all, which is also not 100% true. So either way there is a risk.

Pheidippides
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Re: Missing Wills

#24202

Postby Pheidippides » January 18th, 2017, 6:06 pm

Thanks for the replies all. Let me answer the questions:

Father In Law has died. According to the 1998 will MIL inherits and is the executor.

The "Mrs Pheid executor and kids money in trust etc" is a subsidiary paragraph only if MIL predeceases - she is still very much alive.

MIL has all marbles, but is 83 and doesn't want to be executor - my (limited) understanding is that she can't renounce in favour of someone specific

CK - "all reasonable efforts", involved turning the house upside down to no avail. It is almost certain that the original 2006 wills will NOT have been left with solicitor who drew them up. MIL is certain they have been signed but if they cannot be located then they are lost - what happens then?

We do have a draft of the 2006 will, unsigned of course, so we know what it said, but cannot be ENTIRELY sure that it was signed

Regards

Pheid

swill453
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Re: Missing Wills

#24221

Postby swill453 » January 18th, 2017, 6:39 pm

So the only difference (given that MIL is still alive) between the signed 1998 will and the draft 2006 will is that the first makes MIL executrix, and the second makes Mrs P executrix? In both cases MIL inherits all.

I'm no expert but it seems to me that if Mrs P does the work and prepares the forms for MIL to sign, then it might not meet the letter of the law but it meets the spirit, and there's nobody around who could complain.

Scott.

PinkDalek
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Re: Missing Wills

#24223

Postby PinkDalek » January 18th, 2017, 6:47 pm

Pheidippides wrote:It is almost certain that the original 2006 wills will NOT have been left with solicitor who drew them up.


To be absolutely certain, can someone not ask them?

staffordian
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Re: Missing Wills

#24277

Postby staffordian » January 18th, 2017, 10:09 pm

I'm not sure if I read this somewhere, but I have it in the back of my mind that in cases where a draft (unsigned) copy of a will exists, the original is lost, but there is a reasonable belief that an original had been signed, it is possible in some circumstances to get probate based on the draft.

Has anyone else heard this or am I wrong?

Staffordian

Dod1010
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Re: Missing Wills

#24281

Postby Dod1010 » January 18th, 2017, 10:20 pm

I should think that if the beneficiary(ies) in the earlier Will agree, then a Deed of Variation could be drawn up based on the later draft and the matter resolved.

Is that not so?

Dod

swill453
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Re: Missing Wills

#24283

Postby swill453 » January 18th, 2017, 10:23 pm

Dod1010 wrote:I should think that if the beneficiary(ies) in the earlier Will agree, then a Deed of Variation could be drawn up based on the later draft and the matter resolved.

Is that not so?

Well given that there is no variation, that would seem pointless.

Scott.

staffordian
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Re: Missing Wills

#24286

Postby staffordian » January 18th, 2017, 10:29 pm

swill453 wrote:Well given that there is no variation, that would seem pointless.

Scott.


If the name of the executor is the only difference, I agree, and think your point about someone else doing the work in MIL's name is the way forward, but surely there is more to it, or the missing 2006 will would not be an issue, unless I'm misunderstanding something.

Staffordian

swill453
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Re: Missing Wills

#24288

Postby swill453 » January 18th, 2017, 10:33 pm

staffordian wrote:If the name of the executor is the only difference, I agree, and think your point about someone else doing the work in MIL's name is the way forward, but surely there is more to it, or the missing 2006 will would not be an issue, unless I'm misunderstanding something.

Well the OP has said both wills leave everything to MIL.

Scott.

staffordian
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Re: Missing Wills

#24295

Postby staffordian » January 18th, 2017, 10:43 pm

swill453 wrote:
staffordian wrote:If the name of the executor is the only difference, I agree, and think your point about someone else doing the work in MIL's name is the way forward, but surely there is more to it, or the missing 2006 will would not be an issue, unless I'm misunderstanding something.

Well the OP has said both wills leave everything to MIL.

Scott.


True, but if there is reasonable belief a later one was actually signed, I suppose the only question would be whether there is a problem with probate being sought by MIL (regardless of whether others were doing the work in her name) when it should be obtained by the OP's spouse.

Staffordian

AJC5001
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Re: Missing Wills

#24312

Postby AJC5001 » January 19th, 2017, 12:22 am

Pheidippides wrote:MIL has all marbles, but is 83 and doesn't want to be executor - my (limited) understanding is that she can't renounce in favour of someone specific


Are you (and/or MIL) assuming that the role of executor means doing all the work, writing to everybody, filling in forms, obtaining probate, collecting the money/selling property etc? If so, it doesn't.

An executor can perform their duty by employing a solicitor to do everything for them. The solicitors fees will be paid by the estate. If MIL has capacity, this would seem to be the way forward. She could still ask you/Mrs PD for your help/advice/opinions.

When my mother died (father pre-deceased, mother was executor and all handled by solicitor - everything to mother anyway.) my two siblings and myself were joint executors and we handed everything over to the same solicitor.

When my MIL died, everything went to FIL and probate wasn't needed. When FIL died, my wife acted as administrator as a named beneficiary (both named executors had pre-deceased). As she had been attorney for him before death, all details were already known and probate was obtained without the need for a solicitor.

HTH

Adrian

Gengulphus
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Re: Missing Wills

#24317

Postby Gengulphus » January 19th, 2017, 4:48 am

Pheidippides wrote:CK - "all reasonable efforts", involved turning the house upside down to no avail. It is almost certain that the original 2006 wills will NOT have been left with solicitor who drew them up. MIL is certain they have been signed but if they cannot be located then they are lost - what happens then?

We do have a draft of the 2006 will, unsigned of course, so we know what it said, but cannot be ENTIRELY sure that it was signed

Contact the solicitor who drew up the 2006 wills anyway and ask what they can tell you about those wills. You're merely almost certain the originals of those wills were not left with that solicitor, so there is an outside chance that they were - and you won't have made all reasonable efforts to find them if you don't ask about such an obvious place. And rather more likely, that solicitor may well be able to supply information about whether they were indeed signed correctly and/or what happened to them.

If the 2006 wills were signed correctly, they revoked the 1998 wills - so it basically becomes an issue of what happened to the 2006 wills. If they were deliberately destroyed by those that made them with the intention of revoking them, that revokes them, which I believe (but am not 100% certain) would make FIL intestate. Otherwise, they're basically lost - and if I remember previous answers I've seen on TMF correctly, there is a procedure for getting a copy of a lost will admitted to probate. Don't remember what exactly is involved, though!

If the 2006 wills were not signed correctly, then the 1998 wills remain valid (unless of course there turns out to be some other will - but I presume that the thorough searching for the 2006 wills has not turned up any traces of such wills).

One other point is that as you say "2006 wills" - plural - I presume that there is a similar situation with regard to MIL's will - i.e. a 1998 will which is known to exist and a 2006 will which is believed to have been signed but cannot be found. She should resolve that situation as soon as reasonably possible - the easiest way is almost certainly for her to draw up and sign a new 2017 will, and make certain everyone concerned knows where it is!

Gengulphus

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Re: Missing Wills

#24319

Postby Gengulphus » January 19th, 2017, 5:22 am

staffordian wrote:If the name of the executor is the only difference, I agree, and think your point about someone else doing the work in MIL's name is the way forward, but surely there is more to it, or the missing 2006 will would not be an issue, unless I'm misunderstanding something.

As CK has said, it's an issue of perjury, which is a criminal offence. Specifically, to get probate as an executor of a will in the normal course of events, one has to swear an executor's oath which says (among other things) "We believe the paper writing now produced to and marked by us to contain the true and original last Will and Testament of ...". If one believes that the 2006 will was signed (or was very likely to have been) but has been lost, one cannot truthfully swear that about the original 1998 will because one doesn't believe it to be the true and original last Will and Testament, nor about the original 2006 will because one cannot produce it.

Gengulphus


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