Missing Wills

[Lootman]

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.

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.

Mel is correct - that was my paragraph and I fixed it above.

The introduction of the brother-in-law changes things. He might be disadvantaged by the execution of the 1998 Will and, if so, may decide to challenge its validity or otherwise cause trouble. If you think that's possible then the risk of executing the 1998 Will increases.

[Clitheroekid]

As often happens in these interesting discussions we're all in danger of not being able to see the wood for the trees.

The situation is really quite simple. There is strong evidence that a new Will was made in 2006. Not only is there a draft Will but the MIL is `almost certain' that it was signed.

As the MIL is compos mentis I think she needs to exercise her little grey cells a little more and try to recall the event more accurately. It was only 10 years ago, and I would have expected someone to have a rather better memory of the event than she seems to have. After all, signing a Will isn't an everyday occurrence.

If she didn't keep the Will after it was signed it's 99% certain the solicitor would have sent her a copy, so perhaps she also needs to make a more thorough search of her records.

In the light of this strong evidence there is quite clearly a responsibility on the part of the executor of the 2006 Will - Mrs P - to take all reasonable efforts to locate the Will.

The most obvious place by far that it would be is with the solicitors who prepared the draft. I really can't understand why they still don't appear to have been approached.

Even if they don't actually have possession of the executed Will they should be able to advise as to whether or not it was in fact ever executed, and what happened to it after execution.

So the OP needs to complete this step ASAP, as everything else is just speculation.

[Gengulphus]

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!

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

[Lootman]

In the light of this strong evidence there is quite clearly a responsibility on the part of the executor of the 2006 Will - Mrs P - to take all reasonable efforts to locate the Will.

The most obvious place by far that it would be is with the solicitors who prepared the draft. I really can't understand why they still don't appear to have been approached.

Even if they don't actually have possession of the executed Will they should be able to advise as to whether or not it was in fact ever executed, and what happened to it after execution.

I am not going to attribute a motive to Pheid here, not least because it is clear that he is seeking to carry out the honest wishes of his FIL and MIL, and that is a good and noble thing. But if I were in his situation I might hold off asking the solicitor who prepared the alleged 2006 Will, and for this reason.

If that solicitor has a signed version of the 2006 Will, then all is well. It can be executed as it, and the 1998 Will becomes moot. If they say that no 2006 Will exists, then that's good too, and the 1998 Will can be executed.

But if the solicitor doesn't have a valid copy of the 2006 Will but does confirm that it existed in valid form, then I have just lost an option - the option to swear an oath that I reasonably believe that the 1998 Will is the last Will, because I reasonably believe that the 2006 Will doesn't exist. (See my discussion with Gengulphus about that).

By waiting to contact that solicitor, I can take advice, like Pheid is is doing here and perhaps elsewhere. I can perhaps also develop a question in a form that retains my ability to still credibly doubt that a valid 2006 Will exists. For instance, I might ask a Yes/No question like "Do you have a valid copy of FIL's Will" rather than a more open-ended question like "Was a valid Will created in 2006?"

In other words, it's about me maintaining "plausible deniability" regarding the 2006 Will. I do not want to be in a position where a neutral party can testify I had knowledge that I might later want to deny having. (Although if it's my solicitor presumably our conversations are privileged anyway, and my solicitor cannot be compelled to testify against me?)

Now I don't expect you to agree with or support this reasoning. You have an impeccable approach to such things and that is to be respected. But you said that you can't understand why a query hasn't been made to the solicitor yet and so I provided at least one reason, as ethically ambivalent as you may find that to be.

[Lootman]

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.
Gengulphus

Your statement that swearing such an oath is perjury assumes that everything said in this thread is known to the court that is considering the perjury charge. Obviously this discussion is in the public realm now and could, theoretically be used in evidence in a courtroom if the parties were identified in real life.

But we can also reasonably assume that this discussion would not be available to that court, which means that the perjury charge would be assessed on other things that could be proven were said, believed or written. In other words the court and prosecution may have less information than you and I do here.

There are other practical difficulties for you (the prosecutor) getting a conviction of perjury against me:

1) I cannot be made to incriminate myself; I have the right to silence.
2) My wife cannot be made to testify against me
3) My solicitor cannot testify against me (*)
4) The rest of my family would not co-operate with you.

So how could all reasonable doubt be removed?

(*) I imagine there are exceptions to the privileged nature of discussions between myself and my lawyer, but I do not know what they are.

[RandomWords]

That there are a few posters here who would happily knowingly perjure themselves, and recommend others to do so (so long as they thought/knew they would not be successfully prosecuted) is very distasteful, and a poor reflection on those people on that side of the argument.

RW

[melonfool]

There are other practical difficulties for you (the prosecutor) getting a conviction of perjury against me:

1) I cannot be made to incriminate myself; I have the right to silence.
2) My wife cannot be made to testify against me
3) My solicitor cannot testify against me (*)
4) The rest of my family would not co-operate with you.

So how could all reasonable doubt be removed?

1) the court/jury takes its own view of people's refusal to speak in court
2) ditto - the wife is hardly likely to stand up in your support and perjure herself too so her refusal to stand up and support you would give the court something to think about
3) no
4) ....except the brother....

Reasonable doubt for sure.

Mel

[melonfool]

That there are a few posters here who would happily knowingly perjure themselves, and recommend others to do so (so long as they thought/knew they would not be successfully prosecuted) is very distasteful, and a poor reflection on those people on that side of the argument.

RW

Totally agree, an abhorrent use of a public discussion board, provided for free, in my view.

Mel

[Gengulphus]

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.
Gengulphus

Your statement that swearing such an oath is perjury assumes that everything said in this thread is known to the court that is considering the perjury charge. ...

Poppycock.

If I were to break into your house with the intent to permanently deprive you of your possessions (and without lawful authority to do so, etc), I would be committing the crime of burglary. That is true regardless of whether I was ever taken to court for it, and if I was, regardless of whether it could be proved in court: those are relevant considerations to the question of whether I could be convicted and sentenced for the crime, and to whether someone could say that I committed a burglary without risking being sued for libel, but not to the question of whether I did commit it.

Likewise, if someone swears an executor's oath that states that they believe certain things, when they don't actually believe them, they commit the crime of perjury. How likely they are to be taken to court and what can be proved in court are relevant considerations to the question of whether they can be convicted and sentenced for that crime, but not to the question of whether they committed it.

Quite possibly they might think that they are committing perjury, but they can justifiably commit that crime in the cause of achieving the deceased's wishes. Quite possibly they might think that they are committing perjury, but they can safely commit that crime because of the unlikeliness of them ever being prosecuted for it, let alone convicted.

But if they think that they are not committing perjury, they're kidding themselves.

There are other practical difficulties for you (the prosecutor) getting a conviction of perjury ...

I'm not the prosecutor, and I'm not seeking a conviction!

I'm someone discussing the possibility of swearing such an oath (that one believes certain things when one doesn't believe them), and I'm saying that it is the crime of perjury. That's all I'm saying: I'm not saying "and therefore you mustn't do it", I'm not saying "and you're likely to be convicted of that crime". As far as I am concerned, people ought to be clear about the fact that it is a crime so that they can make an informed choice about whether to commit it: what I don't want is for them to be bamboozled by "it's not really a crime" ideas...

Gengulphus

[Clitheroekid]

But if the solicitor doesn't have a valid copy of the 2006 Will but does confirm that it existed in valid form, then I have just lost an option - the option to swear an oath that I reasonably believe that the 1998 Will is the last Will, because I reasonably believe that the 2006 Will doesn't exist.

Anyone who considered this to be a `reasonable' belief would need to be exceptionally stupid and/or have a remarkable capacity for self-delusion.

How could any rational person `reasonably believe that the 2006 Will doesn't exist' when (a) they have seen a draft that was prepared; (b) they have been told that the 2006 Will was almost certainly signed; and (c) they have deliberately avoided making the most obvious enquiry as to its existence?

[Lootman]

1) the court/jury takes its own view of people's refusal to speak in court

In a civil case, yes. In a criminal case, no, and the judge would instruct the jury accordingly.

2) ditto - the wife is hardly likely to stand up in your support and perjure herself too so her refusal to stand up and support you would give the court something to think about

It's called spousal privilege. A spouse cannot be compelled to testify. Again, the judge would instruct the jury to assume nothing from that.

3) no

That's wrong. My lawyer cannot be compelled to testify against me, and any discussions I have with my lawyer are privileged. Otherwise how on earth could I have any frank, honest discussions with the chap who is supposed to be defending me?

There are some exceptions that were explained to me by my lawyer. He made a point of letting me know them before we proceeded. For example, he could break privilege if I stated my intention to harm myself or others. I cannot remember all the exceptions but they were a fairly small number.

4) ....except the brother....

Now there you do have a point. When I originally suggested that the risk of a perjury conviction was microscopic, it was with the assumption that nobody was harmed by using the 1998 Will. It seems now that may not be the case and the BIL could make some mischief here, and skew the odds.

[Lootman]

That there are a few posters here who would happily knowingly perjure themselves, and recommend others to do so (so long as they thought/knew they would not be successfully prosecuted) is very distasteful, and a poor reflection on those people on that side of the argument

That's really a philosophical question about the purpose of this board, so perhaps deserves its own topic. If you want to start one I will explain why I think this discussion is a valuable and valid one.

But my short answer would be that it is perfectly legitimate to discuss various legal strategies here, with varying risk profiles. Assessing the risk and relevance is a part of the discussion, and I see nothing in the board guidelines that prohibit such discussion.

Pheid explained why he was considering this strategy, including a description of why he feels that his motives are good. He deserves consideration.

[Lootman]

Likewise, if someone swears an executor's oath that states that they believe certain things, when they don't actually believe them, they commit the crime of perjury. How likely they are to be taken to court and what can be proved in court are relevant considerations to the question of whether they can be convicted and sentenced for that crime, but not to the question of whether they committed it.

As a common sense interpretation of language, I can understand that.

But "committing a crime" is something that can only be determined by a court of law. You are considered to be innocent until proven guilty. Therefore it is not legally correct to say that you committed perjury until a court of law so finds. There is no black-and-white determination that an act of perjury has happened. That is why you are supposed to instead say that I committed an ALLEGED act of perjury.

In fact technically, if the prosecution fails, the case will be described as "not proven". A court never finds you innocent. It simply fails to prove its case, which means there was no perjury.

[Lootman]

How could any rational person reasonably believe that the 2006 Will doesn't exist' when (a) they have seen a draft that was prepared; (b) they have been told that the 2006 Will was almost certainly signed; and (c) they have deliberately avoided making the most obvious enquiry as to its existence

a) The fact that a draft was prepared does not prove that it was signed and witnessed correctly. It could simply have been an idea that was nor carried through

b) The MIL is the only one who is claiming to have seen a signed Will. She is 83 and was described at one point as being "not fully competent".

c) I wasn't suggesting that inquiry not be made and Pheid said he will do that. I was simply explaining one reason why it might not have been done yet. Their response will determine, to my mind anyway, whether a credible oath can be sworn for the 1998 Will.

[Jan001]

But "committing a crime" is something that can only be determined by a court of law.

So if I murder someone, that's not committing a crime unless I get caught and found guilty?

An interesting way of looking at things.

Jan

[Lootman]

But "committing a crime" is something that can only be determined by a court of law.

So if I murder someone, that's not committing a crime unless I get caught and found guilty? An interesting way of looking at things.

It's the legally correct way of looking at things. Suppose this:

You and I are walking along the street and I pull out a gun and shoot you dead. Did I commit murder? No. Because murder is a very specific legal term that means that I unlawfully killed you.

Now, it may turn out that was the case. But it also may turn out that you were a terrorist who was about to kill 100 people, and I perceived that. Or you may have presented an immediate threat of death to me and I acted in self defence. In those case I lawfully killed you and so it's not murder.

So did I kill you? Yes. Did I commit murder? No. Murder is not killing - it is unlawful killing, and that is for a court to determine.

Likewise, if I lie under oath, is it perjury? Maybe. Maybe not. Lying is a fact but perjury is a court determination, and that was the point Gengulphus missed, I submit.

[quelquod]

Likewise, if I lie under oath, is it perjury? Maybe. Maybe not. Lying is a fact but perjury is a court determination, and that was the point Gengulphus missed, I submit.

Gengulphus didn't miss it. He said (not attempting an accurate quotation) 'if you knowingly lie you commit perjury' and to my mind that is simple fact. Perjury cases are relatively rare because of the difficulty of proof of 'knowing' but the crime is still there, simply not proven or undiscovered. A few recent cases (not of perjury) have demonstrated clearly enough through civil action that not clearing the bar of criminal proof is not a demonstration in itself of innocence.

[Gengulphus]

But "committing a crime" is something that can only be determined by a court of law.

Wrong - what can only be determined in a court of law is being legally found guilty of the crime. That involves proving beyond reasonable doubt that the accused committed the crime, but that's not the same thing.

For instance, a few years ago someone broke into my house and stole a laptop, an iPad and a wireless modem. They have not been caught. By your idea of what "committing a crime" means, it's impossible to determine whether a crime was committed until and unless someone is prosecuted for it. That's nonsense: someone committed that crime - it's simply not known who did so. And if in the future someone is prosecuted for it, the court case won't alter the fact that someone committed the crime - what it will determine is the question of whether one particular person is legally guilty of it.

And on the question of whether someone commits a crime, it is possible for the person who commits it to know with complete certainty that they've committed it - and it is possible for a person who is contemplating committing one to know with complete certainty that if they do certain things, they will commit it. They're actually better at determining those questions than a court, which can merely determine things beyond reasonable doubt.

The net result is that for someone contemplating a potentially criminal action, "will I be committing a crime?" and "will I be found guilty of a crime?" are two different questions - and it's the latter that can only be determined by a court. The former is one they can determine - and in the particular case of swearing an executor's oath, which involves potential perjury about what they believe, they are the only person with first-hand knowledge of what they believe and so actually in the best position to determine it.

In fact technically, if the prosecution fails, the case will be described as "not proven". A court never finds you innocent. It simply fails to prove its case, which means there was no perjury.

If you're going to get technical, please try to get the technicalities right!

In England and Wales, the court finds you "guilty" or "not guilty" - there is no verdict of "not proven". That fits in perfectly with what I say above: the court determines the question of whether you are legally guilty of the crime.

In Scotland, the court can find you "guilty", "not proven" or "not guilty". Not a system I fully understand, but I think a rough summary is that the latter two are both acquittals, with "not guilty" actually either being an effective "innocent" verdict or at least closer to it than "not proven". https://en.wikipedia.org/wiki/Not_proven has more on the subject.

Gengulphus

[Gengulphus]

But "committing a crime" is something that can only be determined by a court of law.

So if I murder someone, that's not committing a crime unless I get caught and found guilty? An interesting way of looking at things.

It's the legally correct way of looking at things. Suppose this:

You and I are walking along the street and I pull out a gun and shoot you dead. Did I commit murder? No. Because murder is a very specific legal term that means that I unlawfully killed you.

Now, it may turn out that was the case. But it also may turn out that you were a terrorist who was about to kill 100 people, and I perceived that. Or you may have presented an immediate threat of death to me and I acted in self defence. In those case I lawfully killed you and so it's not murder.

But suppose that you are sane and you shot me dead simply because you hated me - no other reason. Then the fact is that you committed murder, and you know that fact to be true - or at least ought to. No-one else can be absolutely 100% certain about it, but you yourself can.

And if rather than just shooting me dead, you first went to your legal adviser and asked "if I were to shoot Gengulphus dead simply because I hate him - no other reason - would I be committing murder?", your legal adviser can answer with a simple "yes" - because his advice about that hypothetical question is based on what the law says about a situation in which the hypotheses in the question are actually true.

If you instead went to your legal adviser and asked "if I were to shoot Gengulphus dead simply because I hate him - no other reason - would I be found guilty of murder?", the best answer your legal adviser can give is essentially "depends...", because obviously your chances of being found guilty depend on how you go about it, how competent or incompetent you are at not leaving clues, how lucky or unlucky you are about no-one else happening to be in the wrong place at the wrong time, etc.

If you instead went to your legal adviser and asked "I want to shoot Gengulphus dead simply because I hate him - no other reason - how should I go about this to minimise my chances of being found guilty of murder?", well, I'd guess that some legal advisers might answer the question. But a lot would say "Sorry, I'm not going to assist you in committing a crime. The only advice I can give you is not to shoot Gengulphus dead." - and probably follow up with "Sorry, I'm no longer willing to act as your legal adviser." if you tried to insist on getting advice about how to commit the crime.

We're not exactly acting as Pheid's legal advisers here, but we are a lot closer to doing that than to acting as prosecutors. And I've said that if Pheid's statement that "In short we BELIEVE that there is another will but we don't KNOW" is still true of the people concerned, then any of them swearing the oath with regard to the 1998 will would commit the crime of perjury. It really is that simple - just as the answer to the first question above is a simple "yes".

And what I've said is NOT an attempt to answer analogues of either of the other two questions. One of the differences of our role from that of a real legal adviser is that we are completely free to decide which questions we attempt to answer. You're completely free to choose to discuss the question of whether the person would be found guilty of perjury, but equally I am completely free to choose not to. And whatever you do say about that question quite simply isn't any sort of refutation of what I've said about the analogue of the first question: that they would be committing perjury, and they themselves can actually know that for a fact even if no-one else can.

Gengulphus

Moderator Message:
I think we have moved far away from the original topic now and away from the practical aspect of this board - and I have had a report suggesting as much. The OP is welcome to continue the discussion on his original question but please could I ask that hypothetical questions around what is and is not legal be ceased here. You may start another thread/topic to discuss further, of course. May I suggest the 'Polite Discussion' board? I would add that while we are happy to see threads wander the problem is that the useful practical advice people seek is undermined by extreme wanderings and the people who are able to assist might be put off from wading through ling threads to find the kernel of an issue, so to keep this board useful I suggest we try to keep threads/topics broadly on point. Many thanks - Mel

[Pheidippides]

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