Missing Wills

[Pheidippides]

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

This is absolutely the point of concern.

Right now, both 1998 and 2006 wills paragraph one is (to all intents and purposes) identical, except for the executor

I fully accept that MIL should write a new will or codicil the 1998 will (if the 2006 isn't found)

MIL is willing (with Mrs P's support) adopt the role of executor, my FIL's estate is relatively small (below IHT) and simple.

Thanks all so far - I will update

Regards

Pheid

[staffordian]

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

I'm not trying to be provocative or obtuse, but on a practical rather than legal level, does it matter in this case?

No one is affected adversely if MIL swears that she is using the last known will when there is a perhaps 1% chance of another existing, which if executed would result in the same people doing the same work and distributing the assets in exactly the same way.

I agree following up with the solicitor is needed, but surely after that, there are just two options.

Truthfully swear they believe they are using the most recent will or look at whether it's possible to have the later unsigned draft will accepted. The latter option, in this particular case, seems to be complete overkill though.

And on a wider point, no-one can really know if a will they are dealing with is the latest; the deceased might always have made another that the executor is unaware of, and no amount of diligence can ever 100% prove that a newer will doesn't exist, therefore in all cases, not just this one, there has to be an elememt of doubt. Its surely just a matter of degree of doubt once due diligence has been done.

Staffordian

[JonE]

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.

Noting the phrase "signed correctly" and given that there is a vague notion that they were "signed" then is there any recollection of who witnessed the signatures? Could the witnesses of the earlier Wills have done the same again? Might the drafting solicitor have any notes on file concerning intentions in this regard? Could candidate witnesses be contacted to discover whether they have any recollections of witnessing so as to demonstrate that reasonable efforts have been made to check the possible existence at some time of these later Wills?

Cheers!

[Clitheroekid]

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

As I said earlier and as has been repeated by others the blindingly obvious answer is just to ask the solicitors who prepared the draft.

If you don't do so then you have quite clearly failed to make reasonable enquiries - it's the very first enquiry that any executor would be expected to make, and it should provide you with a definitive answer one way or the other..

[Gengulphus]

I fully accept that MIL should write a new will or codicil the 1998 will (if the 2006 isn't found)

Definitely a new will, not a codicil. The whole point is to make questions about whether the old documents are valid or not completely irrelevant. A new will does that, as it revokes all previous wills. A codicil only amends them, and therefore still leaves questions of whether they are valid still open.

Gengulphus

[Gengulphus]

I'm not trying to be provocative or obtuse, but on a practical rather than legal level, does it matter in this case?

No one is affected adversely if MIL swears that she is using the last known will when there is a perhaps 1% chance of another existing, which if executed would result in the same people doing the same work and distributing the assets in exactly the same way.

But that isn't the situation here - Pheidippides said in the OP with regard to the 2006 wills that:

"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."

And in a later post confirmed it with:

"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"

Those sound closer to a 1% chance that the 2006 wills were not duly executed than to a 1% chance that they were...

Also, the executor's oath talks about believing that the will being presented is the last Will and Testament of the deceased, not about a belief that it is their last known Will and Testament. If MIL swears that she is doing the latter, my guess is that it simply won't be accepted as a valid executor's oath.

And while on matters of civil law, if everyone concerned agrees that it doesn't matter, then it really does not matter, the same is not true of criminal law...

And on a wider point, no-one can really know if a will they are dealing with is the latest; the deceased might always have made another that the executor is unaware of, and no amount of diligence can ever 100% prove that a newer will doesn't exist, therefore in all cases, not just this one, there has to be an elememt of doubt. Its surely just a matter of degree of doubt once due diligence has been done.

That's why the executor's oath swears that the executor believes the will being presented is the last one, rather than swearing that it is the last one. But to avoid being perjury, it's got to be a reasonable belief, based on reasonable enquiries - not a belief of convenience! And given what Pheidippides has said, presenting the 1998 will as the last one would certainly be convenient, but equally certainly wouldn't be a reasonable belief.

Gengulphus

[Lootman]

And while on matters of civil law, if everyone concerned agrees that it doesn't matter, then it really does not matter, the same is not true of criminal law...

Yes, but criminal law is not enforced in a vacuum. If I swear I am executing a valid Will when, in fact, there was a later Will but only one copy of it ever existed and it was destroyed then, technically, it's perjury but in reality there would neither be any way to prove that without my testimony nor any motivation for the police to get involved.

I'd estimate that most civil cases that go to court involve somebody committing perjury. After all, one hears different versions of the same story at trial, all told under oath. But usually being caught in a lie will lose you the case and that will be deemed sufficient punishment. Few of those cases are then criminally prosecuted as well. No public interest is served by that.

Since everyone here is on the same page, and there is no dispute, I'd assess the criminal risk as somewhere between zero and negligible. And if I were called up for jury duty on a case like this, I'd vote "not guilty" in protest of having my time wasted on such a trivial infraction.

That's why the executor's oath swears that the executor believes the will being presented is the last one, rather than swearing that it is the last one. But to avoid being perjury, it's got to be a reasonable belief, based on reasonable enquiries - not a belief of convenience! And given what Pheidippides has said, presenting the 1998 will as the last one would certainly be convenient, but equally certainly wouldn't be a reasonable belief

When you swear that oath, it cannot be with the solicitor who prepared the Will or is handling probate. Therefore it is a solicitor who has no knowledge of the situation and no interest in it. So as a practical matter, they accept your swearing of the oath at face value. They don't start questioning you about it or doubting your word. They are merely a witness to your statement.

So a question might only arise later if there is a challenge and then, yes, you may have a problem. Although even then I don't think a criminal charge is remotely likely unless some kind of fraud was involved, which isn't the case here.

Personally I would feel comfortable asserting that the 1998 Will is the last Will I know to exist, simply because no harm results from such a declaration. These laws exist to deter fraud and wrongdoing, not to needlessly inconvenience families who are in full harmony and agreement about what to do.

[Clitheroekid]

Yes, but criminal law is not enforced in a vacuum. If I swear I am executing a valid Will when, in fact, there was a later Will but only one copy of it ever existed and it was destroyed then, technically, it's perjury but in reality there would neither be any way to prove that without my testimony nor any motivation for the police to get involved

I find this statement quite astonishing. You're basically saying it's OK to commit a criminal act if you won't get caught. That it's acceptable to lie on oath providing the outcome is what you want.

People don't avoid committing perjury simply because they're frightened of ending up in the clink. They avoid doing so because they are honest and decent people who instinctively want to tell the truth.

Once you accept that lying on oath is OK when it's the most convenient solution we might as well abandon the civil justice system and settle disputes by force of arms.

I'd estimate that most civil cases that go to court involve somebody committing perjury. After all, one hears different versions of the same story at trial, all told under oath.

With respect, you can have very little experience of civil litigation to make such a comment. I've been running civil cases for well over 30 years, and I can tell you from personal experience that the vast majority of witnesses do not commit perjury.

Yes, you may well hear different versions of an event, but this does not remotely mean that people are lying. There is a huge legal literature on witness evidence, and it is generally accepted by lawyers and judges that memory is far from reliable, and that witnesses can genuinely believe a version of events that is completely wrong. And such errors are by no means always self-serving errors, either.

If you're interested in the subject have a look at this blog from Gordon Exall, a leading barrister, particularly the section headed `Evidence of recollection' - http://www.civillitigationbrief.com/201 ... s-applied/

And even people who are inclined to commit perjury often lose their nerve in a court room. Fortunately, most people are inherently honest, which makes them very bad liars, particularly under the pressure of cross-examination. I must confess that it's one of the greatest pleasures of a civil trial to see a liar forensically destroyed by competent counsel. But one of the reasons it's so pleasurable is because it's so rare. It's far more common for people to tell the truth reluctantly. They will often make a few rather pathetic efforts to put a gloss on it, but in the large majority of cases the truth does eventually emerge.

Personally I would feel comfortable asserting that the 1998 Will is the last Will I know to exist, simply because no harm results from such a declaration.

I suspect - and hope - that you're in a small minority. Stating the truth should never depend on the anticipated consequences of lying.

[Lootman]

You're basically saying it's OK to commit a criminal act if you won't get caught. That it's acceptable to lie on oath providing the outcome is what you want.

No, that's not what I am saying. I was referring to this particular case where the two Wills are identical, where no fraud is intended, where the outcomes are the same whichever Will is used, where no harm is done, and where the entire family agrees on how to handle the situation.

In that context I see this as a white lie where the intent is honourable. That is a million miles from a situation where someone, say, destroys a later Will and lies about it because they personally profit from the terms of an earlier but invalid Will. Context matters.

With respect, you can have very little experience of civil litigation to make such a comment. I've been running civil cases for well over 30 years, and I can tell you from personal experience that the vast majority of witnesses do not commit perjury.

But how do you know? By definition you only know when someone has lied if they tell you, or if it is uncovered or proven somehow. How would you know how many times someone had lied and you missed it? The only people who really know how much lying goes on are the liars themselves.

And "with respect", it depends on what you mean by "very little experience". I've been a party to six civil actions that have gone to at least a hearing, if not a trial. (And a couple of criminal ones as well). I've also given oral testimony in a non-courtroom setting twice, under oath and recorded and broadcasted by CCTV. I know for a fact that at least one person lied in each of those cases, either because I did or because the other guy did.

Not that I am advocating dishonesty as a legal strategy. Indeed, the justice system relies on honesty. But I think it's naive to think that parties to an action aren't often economical with the truth. Neutral witnesses, overall, are probably more honest because there is nothing at stake.

Fortunately, most people are inherently honest, which makes them very bad liars, particularly under the pressure of cross-examination.

I agree. Most people are crap at lying. Some people are really really good at it as well. But as interesting as this topic is (and I liked your link by the way), I feel that the advice that Pheid has received here is mostly about what people claim he can't do. He can't use the 1998 Will because it's invalid. He can't use the 2006 Will because nobody can find it. I was at least trying to offer up an affirmative course of action. Unless a decision is made to use one of these two Wills then intestacy is the only other option, despite the clear existence of Wills. What judicial or public interest imperative does that serve? "Rules is rules" somehow doesn't seem sufficient or helpful here.

I think this is one of those cases where the laws that protect most of us most of the time, actually fail us.

[Gengulphus]

I'd estimate that most civil cases that go to court involve somebody committing perjury. After all, one hears different versions of the same story at trial, all told under oath. But usually being caught in a lie will lose you the case and that will be deemed sufficient punishment. Few of those cases are then criminally prosecuted as well. No public interest is served by that.

Even if what you say about perjury frequently being committed is true, it's important to realise why there are few criminal prosecutions. It's that when A's story has been believed in a civil case and B's has not, with the result that the case has gone in A's favour, that only shows that it was reckoned that the balance of probabilities is that B lied. To get a criminal conviction, it has to be shown beyond reasonable doubt that B lied, and that's liable to be difficult even when it is clear beyond reasonable doubt that either A or B lied. And as CK indicates, that often isn't clear: there is usually an alternative explanation that one (or indeed both!) of them had an unreliable memory.

The net result is that there are few criminal prosecutions in cases of contradictory evidence from different witnesses because in most such cases, it's very unlikely to produce a conviction. Spending time, money and other resources on such prosecutions is generally not in the public interest even if upholding the law concerned is in the public interest. So while you're right that in the vast majority of such cases no (or too little to be worthwhile) public interest is served by a prosecution for perjury, that isn't evidence that no public interest is served by prosecutions for perjury in other circumstances.

And A falsely swearing an executor's oath is "in other circumstances". In particular, it is not an "did A lie or did B lie?" situation, as quite obviously only A has first-hand knowledge of what A believed. It's instead an "is there any reasonable way A can be telling the truth?" situation.

But in any case, what I've said is that the issue is one of perjury, a criminal offence, and that's completely true. You're raising the separate issue of whether it's justifiable / safe to commit that offense, which I didn't comment on and don't intend to. That's because the issue of justifiability is almost certainly going to decided by the attitude of the executor towards the law rather than anything you or I say, and I have no knowledge of things that will make a difference to the question of safety, such as how many people are aware of the full facts and what their attitudes are towards upholding the law.

That's why the executor's oath swears that the executor believes the will being presented is the last one, rather than swearing that it is the last one. But to avoid being perjury, it's got to be a reasonable belief, based on reasonable enquiries - not a belief of convenience! And given what Pheidippides has said, presenting the 1998 will as the last one would certainly be convenient, but equally certainly wouldn't be a reasonable belief

When you swear that oath, it cannot be with the solicitor who prepared the Will or is handling probate. Therefore it is a solicitor who has no knowledge of the situation and no interest in it. So as a practical matter, they accept your swearing of the oath at face value. They don't start questioning you about it or doubting your word. They are merely a witness to your statement.

So a question might only arise later if there is a challenge and then, yes, you may have a problem. Although even then I don't think a criminal charge is remotely likely unless some kind of fraud was involved, which isn't the case here.

Or it might arise earlier, with the solicitor who is handling probate. They prepare the executor's oath document, and I'm pretty certain that a lot of solicitors would have a serious issue about assisting their client in committing perjury, even if they weren't actually present at the moment the offence was committed.

Personally I would feel comfortable asserting that the 1998 Will is the last Will I know to exist, ...

So would I, but irrelevant because that's not what the executor's oath asserts.

Gengulphus

[Gengulphus]

..., I feel that the advice that Pheid has received here is mostly about what people claim he can't do. He can't use the 1998 Will because it's invalid. He can't use the 2006 Will because nobody can find it. ...

No, while he obviously can't use the 2006 will, I at least have made no claim that he can't use the 1998 will - he can obviously try to do so. I'm also not so naïve as to think such an attempt couldn't succeed - it probably could if approached in the right way.

What I have claimed is that such an attempt involves committing the criminal offence of perjury, unless further information is found that makes it reasonable to believe that the 2006 will was never validly signed. That allows him to make an informed decision about whether to make the attempt.

... I was at least trying to offer up an affirmative course of action. Unless a decision is made to use one of these two Wills then intestacy is the only other option, despite the clear existence of Wills.

No, not the only other option. Try re-reading the thread, and you'll find that at least one other option has been suggested: contact the solicitor who prepared the 2006 will to find out what they can say about it. That could open the way to getting a copy of the 2006 will admitted to probate, or even conceivably locating the 2006 will. There's no guarantee of success on either of them, but it's an affirmative course of action that doesn't involve perjury.

And there's yet another affirmative and completely legal option beyond that: take expert advice about the situation. Discussion boards like this one are very useful, but they're not cure-alls: if the options suggested here don't do the job, it may well be that the Probate Service or a STEP member knows how to deal with the situation. I don't think it's been previously mentioned explicitly, but that's almost certainly because "get expert help" is an available option on just about every legal question raised on this board and so it tends to be treated in a goes-without-saying way...

Gengulphus

[melonfool]

Surely if the 2006 will cannot be found but we know there was one, that means the 1998 will cannot be used as we know it has been revoked.

This means FIl died intestate, so MIL inherits under those rules (and the children if the estate is over those limits - but they can vary to bequeath it back to the MIL if needed/wanted) and the court appoints an administrator who could be MrsOP/MrOP if they put themselves forward?

Seems the most sensible solution?

Mel

[Lootman]

Surely if the 2006 will cannot be found but we know there was one, that means the 1998 will cannot be used as we know it has been revoked.

Pheid said that he is "not certain" that the 2006 Will was signed. The only copy that exists is an unsigned copy; a draft in effect. It follows that it is also "not certain" whether the 2006 Will was witnessed correctly, even if it was signed.

So it's "not certain" that the 1998 Will is revoked. It may or may not be revoked depending on factors that are not known and may never be known.

That said, if the outcome from choosing the intestacy route is the same as these similar Wills, and everyone is happy to do that, then it removes the risk of executing the 1998 Will and then a valid original of the 2006 Will shows up later. Whether that would really matter after the fact, in this particular situation, is open to debate.

[melonfool]

Surely if the 2006 will cannot be found but we know there was one, that means the 1998 will cannot be used as we know it has been revoked.

Pheid said that he is "not certain" that the 2006 Will was signed. The only copy that exists is an unsigned copy; a draft in effect. It follows that it is also "not certain" whether the 2006 Will was witnessed correctly, even if it was signed.

So it's "not certain" that the 1998 Will is revoked. It may or may not be revoked depending on factors that are not known and may never be known.

That said, if the outcome from choosing the intestacy route is the same as these similar Wills, and everyone is happy to do that, then it removes the risk of executing the 1998 Will and then a valid original of the 2006 Will shows up later. Whether that would really matter after the fact, in this particular situation, is open to debate.

He's not certain but his MIL IS certain, apparently. Why his uncertainty (it's not his will, nor even his direct family) would trump hers I don't know.

Mel

[Lootman]

So a question might only arise later if there is a challenge and then, yes, you may have a problem. Although even then I don't think a criminal charge is remotely likely unless some kind of fraud was involved, which isn't the case here.

Or it might arise earlier, with the solicitor who is handling probate. They prepare the executor's oath document, and I'm pretty certain that a lot of solicitors would have a serious issue about assisting their client in committing perjury, even if they weren't actually present at the moment the offence was committed.

Solicitors are often not employed to conduct probate. I cannot recall now where I obtained the oath document the last time I was an executor. I would imagine it's a fairly standard document and would have been provided by the solicitor who conducted the oath and, as noted, that is a solicitor with no knowledge of the case and no reason to question the executor. At least in my experience, it was a rubber stamp.

But more generally, yes, if you intend to lie about something you probably won't be able to find a solicitor who will go along with that. Their first loyalty is to their profession and their licence to practice. Lawyers are officers of the court. So you'd end up having to lie to your solicitor as well, which isn't a great idea. Mafia bosses and the like can probably find a lawyer with fewer scruples. I'm pretty sure that the lawyers for John Gotti (AKA The Teflon Don) and OJ Simpson knew their clients were lying.

Personally I would feel comfortable asserting that the 1998 Will is the last Will I know to exist, ...

So would I, but irrelevant because that's not what the executor's oath asserts.

You stated earlier that the oath is about what the executor reasonably believes, not about absolute fact. And that makes sense because one can never be 100% certain that there isn't some later Will that is hidden somewhere.

Given that Pheid "is not certain" that the 2006 Will was ever signed, only that a draft exists, then I would argue that he can "reasonably believe" that the 1998 Will is the last valid Will. As you note, a perjury conviction requires proof beyond a reasonable doubt, I submit that there absolutely would be reasonable doubt here. As you say, it's Pheid's decision, but I rather get the impression he wants to go with the 1998 Will.

[swill453]

Given that Pheid "is not certain" that the 2006 Will was ever signed, only that a draft exists, then I would argue that he can "reasonably believe" that the 1998 Will is the last valid Will. As you note, a perjury conviction requires proof beyond a reasonable doubt, I submit that there absolutely would be reasonable doubt here. As you say, it's Pheid's decision, but I rather get the impression he wants to go with the 1998 Will.

The problem then, is that the 1998 will makes MIL the executrix, and "MIL is certain" that the 2006 will has been signed (presumably validly with witnesses).

Scott.

[Lootman]

Given that Pheid "is not certain" that the 2006 Will was ever signed, only that a draft exists, then I would argue that he can "reasonably believe" that the 1998 Will is the last valid Will. As you note, a perjury conviction requires proof beyond a reasonable doubt, I submit that there absolutely would be reasonable doubt here. As you say, it's Pheid's decision, but I rather get the impression he wants to go with the 1998 Will.

The problem then, is that the 1998 will makes MIL the executrix, and "MIL is certain" that the 2006 will has been signed (presumably validly with witnesses).

Pheid stated that "MIL is not competent to fulfill the role of executor fully." So if the 1998 Will is used, she would presumably renounce.

So the person who swears the oath would not be the person who is "certain" that the 2006 Will was ever signed and witnessed. It would be Pheid, who says he is "not certain".

Whether it is reasonable for Pheid to be "not certain" when his MIL is "certain" is an interesting discussion. If she is 83 and "not fully competent" then there is reasonable doubt about her sense of certainty, I'd have thought.

[Pheidippides]

What a can of worms.

A couple of additional pieces of information. We have no intention of using a solicitor, armed with the encouragement and collective wisdom of the Fool, I was able to "executor" my Father's estate easily.

As to my comments about my MIL - she is most definitely intellectually competent. She is a little lost without her husband and very lacking in the confidence that being an executor will demand. Just swearing the oath with my wife (metaphorically) holding her hand will be the extent of her involvement, apart from signing all the documentation.

That said, if the outcome from choosing the intestacy route is the same as these similar Wills, and everyone is happy to do that, then it removes the risk of executing the 1998 Will and then a valid original of the 2006 Will shows up later. Whether that would really matter after the fact, in this particular situation, is open to debate.

Moderator Message:
quotes corrected as per posts below (chas49)

Whilst I completely agree with what CK has said. The above paragraph is the problem.

We KNOW that the intent and substance of the 1998 and 2006 wills is, executor aside, broadly the same.

However, the rules of intestacy (as I understand them) would give Mrs Pheid's Brother a right to part of the estate. This is explicitly what my in-laws do NOT want. Ultimately the 1998 and 2006 wills generate the same correct and intended outcome, the same is NOT true of the intestacy rules.

Thus, this is a clear case of making a potentially false statement with absolutely the correct and desired outcome.

regards

Pheid

[melonfool]

Just to correct the 'quoting' - I didn't say the paragraph you have quoted. I think Lootman did.

Mel

[melonfool]

However, the rules of intestacy (as I understand them) would give Mrs Pheid's Brother a right to part of the estate. This is explicitly what my in-laws do NOT want. Ultimately the 1998 and 2006 wills generate the same correct and intended outcome, the same is NOT true of the intestacy rules.

Thus, this is a clear case of making a potentially false statement with absolutely the correct and desired outcome.

regards

Pheid

In all the chaff I had forgotten the estranged brother - yes, if the estate is over the threshold for spousal inheritance only, the brother would inherit a share.

Can MIL not remember who might have witnessed the 2006 will? Have you asked the solicitor if they have any further information, or even a stored copy of the signed will?

Mel