Lootman wrote:Gengulphus wrote:Lootman wrote: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.
My experience is that if one uses a solicitor to conduct probate, they prepare the oath document and send you with it and the original will to another firm of solicitors to actually swear the oath. The actual swearing of the oath is indeed pretty much a rubber-stamp exercise - the firm finds a solicitor who is available and a Bible and it's then a matter of a few minutes to say the words and paying a standard fee in cash.
I don't have experience of doing it without using a solicitor - my cases of being an executor have had complications making use of a solicitor advisable - but
https://www.gov.uk/wills-probate-inheritance/applying-for-a-grant-of-representation indicates that the procedure is that you send the documents other than the oath to a probate office and they send you back a suitable oath document to swear. That makes sense to me - while oath documents are indeed fairly standard AFAIAA, they do require a number of details filling in, not all of which one is likely to know offhand without being forewarned, and there must be several different standard wordings for applying for a grant of probate, a grant of administration, a grant of administration with will annexed, etc. Having the document be supplied by the solicitor who conducts the oath could be done, I suppose, but it wouldn't fit in well with the "in and out in a few minutes" nature of the exercise!
And yes, of course the problem that I said might arise earlier doesn't necessarily happen and one of the cases in which it doesn't happen is if one doesn't use a solicitor. I'd have said "will" rather than "might" if I'd been trying to say that it necessarily happens!
Lootman wrote: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.
Yes, there is reasonable doubt about whether the 2006 will was signed, etc.
But the question in a perjury case would be whether there was reasonable doubt that whoever swore the oath (*) had lied about what they believed. And while it may be interesting to discuss what the people involved
can reasonably believe, in this case we do actually have evidence about what they
do believe: in the OP of this thread, Pheid said that "
In short we BELIEVE that there is another will but we don't KNOW". If that's a true statement of the belief of the people involved (which seems fully consistent with everything else Pheid has said), swearing the executor's oath with regard to the 1998 will would be the criminal offence of perjury. And to be quite clear, I'm still not commenting on whether it would be justifiable / safe to commit that offence: some people won't want to commit it regardless, others will be OK with committing it provided the circumstances are right. They should all be clear about the fact that it really would be the criminal offence, and I can help them make an informed choice to that extent. Whether they then think it OK to commit it is up to them.
Their belief can change, of course, and might very reasonably either be confirmed or changed by information from the solicitors who prepared the 2006 will - which is one of the reasons why it's so important to try to get that information.
(*) Most likely MIL or Mrs Pheid in this case rather than Pheid himself.
Gengulphus