We'd like to remind Forumites to please avoid political debate on the Forum... Read More »
We're aware that some users are experiencing technical issues which the team are working to resolve. See the Community Noticeboard for more info. Thank you for your patience.
📨 Have you signed up to the Forum's new Email Digest yet? Get a selection of trending threads sent straight to your inbox daily, weekly or monthly!
Probate/intestacy stalemate query
Options
Comments
-
http://www.tmsolicitors.co.uk/blog/probate-original-will-lost-what-happens/
http://www.rcsolicitors.co.uk/chiltern-family-law/making-a-will/guides-2/lost-wills.htm
There is a chance that your uncle's copy of the will could be proven and acted upon. As you probably know, this must be contested. Your mum has no choice but to seek legal advice.
There are specialist probate lawyers but they are pricey. Sorry.:huh: Don't know what I'm doing, but doing it anyway... :huh:0 -
Obviously this is hypothetical, but assuming the stalemate continues... Can that situation continue indefinitely? My mother doesn't want to instigate costly proceedings and there's no impetus on my uncle to whilst he's taken up residency in my grandmother's house to which he feels he's solely entitled. Would the Probate Service (or whatever the relevant service is) step in after a certain length of time where there's been a failure to distribute an estate?0
-
it will need to go to court to decide if the will can stand with a copy or the estate is intestate.
The court won't do anything without someone asking them.
Not sure why you cannot make an application to have the estate administered intestate then it is upto the brother to get the will proved.
If the witness are alive they may be asked to confirm they did the job properly.
Was the will drawn up by a solicitor or a DIY one.0 -
My mother feels that she's being taken for a ride by her solicitor. It's over 12 months since her mother's death and he's had nearly £5,000 off her but done nothing to move things forward. She had to complain to his superiors about him on one occasion after phone calls and emails went unanswered for over a month. (As soon as the complaint was received, he magically "reappeared" within minutes, despite having been so elusive.) I sat in on a meeting with him a few months back and I wasn't happy with him either.
The will was drawn up by a solicitor, but for whatever reason they allowed my grandmother to take the original whilst they retained the copy.
How would she go about making an application to have the estate administered intestate so she can (hopefully) force her brother to act and break the stalemate? Would this be a costly process?0 -
There is no cheap/easy option here - someone is going to have to take this to court if you want it sorted out.
Your uncle could probably stay in the house for the rest of his life if he wants to - probate would only become an issue for him if he decided to try and sell.
If you are not happy with your solicitor - go and use someone else.
Solicitors don't automatically keep the original will for you (they may offer that service, but your grandmother had no obligation to use it).0 -
A new solicitor is what we're thinking. My mother feels he's provided a very unsatisfactory service, especially considering the outlay thus far.
My uncle originally got in touch with my mother (via solicitor) asking that the entirety of the estate be signed over to him. There was no information provided at this stage as to the contents of the estate - it was a request for my mother to blindly let him have everything. We believe that, having sold his own house to move into my grandmother's, greed then led him to make that contact so that he can attain the other monies tied up in the estate. He has refused numerous compromises, for example, my mother suggested a solution whereby she got nothing but her share of the estate would be passed to her children (myself and my sister) upon her death, but he refused and continues to insist that the entirety of the estate is legally his.
Thanks for all the advice. It's a big help to my mother to get some clarity on these issues. Any more guidance on this will be much appreciated.0 -
How would she go about making an application to have the estate administered intestate so she can (hopefully) force her brother to act and break the stalemate? Would this be a costly process?
There is a link in a fairly recent post(by me to an article about difficult executors that may help.( I will try and find it)
A standard application would be a PA1 but AIUI this would need both to sign, there is guidence on what to do if one party is obstuctive/unavailable but this would definately need solicitors.
I think the only way forward will be to get the copy will stuck out(or whatever the legal term is) and thne the fight will be to get to be the personal rep for an intestate estate.
... going to look for the link
http://forums.moneysavingexpert.com/showpost.php?p=59169767&postcount=11
http://www.stepjournal.org/journal_archive/2009/march_2009/tackling_troublesome_executors.aspx0 -
†
The will was drawn up by a solicitor, but for whatever reason they allowed my grandmother to take the original whilst they retained the copy.
The problem is that destroying a will (if that's what your grandmother did) doesn't revoke it, if there are other copies that might be shown to be valid. So if, for example, a firm of solicitors have a copy and the original is lost, and the solicitors have a file note showing that it was signed and witnessed, a court might (balance of probabilities, remember, this being a civil action) accept it. The argument that she wrote a will, subsequently it was lost, but here's a copy which a firm of solicitors is willing to attest to, might work. It would push the ball into your court; you would have to show either that the will was revoked and your grandmother is therefore intestate, or that there is a subsequent will with different provisions. From the sound of things, you don't have evidence of either.
Trying to get the estate declared intestate might force your uncle's hand to produce what he has. But from the sounds of it, although he might be bluffing, he might actually have some cards.0 -
A will was made to his exclusive benefit after he bullied my grandmother into it, but he claims it was stolen (we actually think my grandmother destroyed it) and is relying on a copy of it.
From what I understand, if there is no valid will (ie no original will) then it's intestate, as a copy of the will won't suffice legally. He argues that a judge would accept the copy though. Who is right?
If your uncle can prove he has a valid copy of the will your mother could be very heavily out of pocket trying to prove otherwise. Not what you wanted to hear I'm sure, but something to be borne in mind.0 -
This is very different from post #1 where you stated she died intestate. You have assumed this, but as securityguy states above the will could/is still valid if she did not revoke it. Her destroying it has no legal standing.
There's something of a generation clash there. Today, we're much more relaxed about the concept of copies, not only on paper, but microfilm, digital scans, wordprocessing files, and have means to authenticate them as having existed at particular times. An older person might be more open to the idea that the will, as an instrument, dies with the will, a certified document.If your uncle can prove he has a valid copy of the will your mother could be very heavily out of pocket trying to prove otherwise. Not what you wanted to hear I'm sure, but something to be borne in mind.
The only route open to you then would be to show coercion or undue influence. But that would be very, very difficult to prove, especially more than a year after the death. Courts set quite a high threshold for such actions, and a dispute that boiled down to "she should have left it to both of us, but instead she left it to one of us" will run into the "but that's what the will says" rebuttal, and the burden of proving that the will is somehow defective would fall to your mother, rather than your uncle having to disprove the contention.
So there would be two stages. Uncle produces copy. Is this copy deemed to be a valid copy of a potentially contested will? If no, she's intestate. If yes, you then move on to whether the will was the result of undue influence, but the presumption will be that it is not unless there is clear evidence to the contrary. The mere fact that the contents of the will disadvantage one prospective beneficiary is proof of nothing, as otherwise no will which does anything other than divide equally between children would ever go unchallenged.0
This discussion has been closed.
Confirm your email address to Create Threads and Reply

Categories
- All Categories
- 350.8K Banking & Borrowing
- 253.1K Reduce Debt & Boost Income
- 453.5K Spending & Discounts
- 243.8K Work, Benefits & Business
- 598.7K Mortgages, Homes & Bills
- 176.8K Life & Family
- 257.1K Travel & Transport
- 1.5M Hobbies & Leisure
- 16.1K Discuss & Feedback
- 37.6K Read-Only Boards