Probate/intestacy stalemate query

posttokev

NAR wrote: »

I look forward to the next chapter in this "best seller." :beer:

Not everyone's circumstances are simple, unfortunately.

NAR

No they aren't and this may turn out to be an extremely useful reference thread for others in the future.

posttokev

So randomly, after months of silence, my mother's received a letter from her brother's solicitor today saying he's "now in a position to issue court proceedings". He's been in this position for over 12 months in reality. Anyway, his greed's finally getting the better of him and now, apparently, the onus is now on him to argue why the will copy is valid and the whole thing shouldn't be considered intestate. Does he incur more costs as he's (finally) instigating proceedings and what happens beyond this stage?

securityguy

posttokev wrote: »

That's it in a nutshell, but I do still wonder why, if he believes it cannot be challenged, he felt the need to ask my mother to have the estate signed over to him though.

Suppose you hold a copy of a will, which is unsigned or unwitnessed, but has some provenance: it's claimed to be a copy of a will drawn up by a solicitor, and the solicitor has a file note showing it was signed and witnessed. Assume the will is beneficial to you over other pathways, such as intestacy, sufficiently so that other potential beneficiaries would rather the will was not proved.

If you can convince the other possible beneficiaries to fold before it gets to court, you have a sure thing and it's cheap. If it goes to court, the outcome is uncertain, while the expense is certain. You may as well give it a go before you go to court.

madbadrob

Correct me if I am wrong but a olicitor swearing an oath that to the best of his knowledge the copy of the will held by the uncle is a true copy of the original then that copy would be accepted as a legitimate will? Also I would assume that the solicitor wouldnt have kept a copy of any will unless instructed to do so by the client at the time the will was drawn up.
With regards to the solicitor acting for your mother I would now having made a formal complaint to the practice and still not being satisfied make a complaint to the law society to investigate. Proving that your grandmother was coerced into making the provisions in the will is one that you will not be able to do and your only option is now to hope the court do not accept the will as valid but I can't see this happening personally

Rob

securityguy

madbadrob wrote: »

Also I would assume that the solicitor wouldnt have kept a copy of any will unless instructed to do so by the client at the time the will was drawn up.

Rob

Not so.

posttokev

securityguy wrote: »

Suppose you hold a copy of a will, which is unsigned or unwitnessed, but has some provenance: it's claimed to be a copy of a will drawn up by a solicitor, and the solicitor has a file note showing it was signed and witnessed. Assume the will is beneficial to you over other pathways, such as intestacy, sufficiently so that other potential beneficiaries would rather the will was not proved.

If you can convince the other possible beneficiaries to fold before it gets to court, you have a sure thing and it's cheap. If it goes to court, the outcome is uncertain, while the expense is certain. You may as well give it a go before you go to court.

As far as we know there's no file note and his solicitors have been negligent. This is what we've been led to believe thus far although whether a file note's miraculously reappeared now, hence the instigation of proceedings finally, I don't know.

My mother would like to avoid expensive court proceedings at all cost. I'm guessing the only way to do that now is if her brother backs down?


Is a file note a singular entity, by the way, or lots of notes?

posttokev

securityguy wrote: »

Not so.

Could you tell me a bit more on this please, securityguy?

I'd thought initially solicitors usually kept the original copy of a will and I'd been led to believe it would be odd for a solicitor to retain a copy whilst allowing their client to hold the original. (As it would be safer to have the original with the solicitor.) However, I've subsequently heard arguments to the contrary. Would the solicitor always retain something though, whether it be the original or a copy?

posttokev

Just been reading this on the Law Society website...

http://www.lawsociety.org.uk/advice/practice-notes/file-retention-wills-probate/#ftw1_1

4.1 Retaining original wills

You should store the original will until after the death of the client, or until you are able to return the original to the client.


Would this mean that my grandmother's solicitors (I think they're the same as my uncle's representatives) were negligent in not retaining the original will? (It's claimed her solicitor allowed her to retain the original while they held a copy, and the original was supposedly stolen in a burglary in 2010.)


I know that, technically, solicitors don't have to adhere to the Law Society's guidance (or I think I know that - am I right?), but in this instance where they haven't retained the original will, would it be beneficial to us to press this point? (That they haven't "complied with their duties to the Law Society and to the court.")

securityguy

posttokev wrote: »

Could you tell me a bit more on this please, securityguy?

I'd thought initially solicitors usually kept the original copy of a will and I'd been led to believe it would be odd for a solicitor to retain a copy whilst allowing their client to hold the original. (As it would be safer to have the original with the solicitor.) However, I've subsequently heard arguments to the contrary. Would the solicitor always retain something though, whether it be the original or a copy?

I'm not a solicitor. I have, however, worked on data retention issues.

Solicitors may or may not hold the original. Some charge for it, some don't. Some people like to keep it with other paperwork. Some people might have had the will drawn up by a solicitor different to one that holds other documents. There are endless permutations. A will is a document attested to by its witnesses, not by who looked after it, although obviously if there are suggestions of a will being forged or altered, the provenance will be part of the discussion.

However, solicitors should keep records of what they do, which will include the wills that they write. For example, in the case of allegations of a will being altered fraudulently, a copy of the will as originally drawn up could be important. If there were allegations of failures by the solicitors, an audit trail of what happened is necessary. Hence the practice note I referred you to. "Allowing" doesn't come into it: you're paying a solicitor to draw up a document, and what you do with it afterwards is entirely your affair.