Photocopied will

Biggles

New readers start at post #1

Yorkshireman99

securityguy wrote: »

"The applicant will have to declare that there is no will and that full and proper inquiries have been made."

Will they? They will need to fill in form PA1.

http://formfinder.hmctsformfinder.justice.gov.uk/pa1-eng.pdf

Could you point to the bit where they need to undertake "full and proper inquiries"? Question 3.1 "Did the person who has died leave a will?" has two, and exactly two, answers: "Yes, please provide the original document(s) with your application" and "No". There's no "additional information" section, either at this point or anywhere else on the form.

"Not declaring the existence of the copy would be unwise"

To whom and how should they declare it?

Guidance notes PA1A amplifies this: "Please enclose the original will and any codicils with your application (not a photocopy)." (emphasis in original).

"Also the people who have possession of the copy may well make an objection."

At their expense, yes.

Given it is likely that the application will be objected to the applicant needs to be completely honest. You forget the general principle that anyone making an application must disclose any relevant facts. The fact that the notes do not specifically state the need for honesty makes no difference. Not to do so can amount to perverting the course of justice or perjury.

securityguy

"You forget the general principle that anyone making an application must disclose any relevant facts."

Plenty of wills are challenged. Plenty of executors know at the point of applying for probate that such challenges are in the offing. Some may even know that the objections are at least arguable, or perhaps even actively plausible. There is no obligation to declare that. The oath being sworn is "that information you provide in this application is true to the best of your knowledge and belief", and a photocopy does not alter either the knowledge or the belief of the existence of a valid will.

"Not to do so can amount to perverting the course of justice or perjury."

No, it really can't. You're getting carried away. Perverting the course of justice only arises in regard to criminal matters: you cannot pervert the course of a civil matter, as it is not "public justice". It's theoretically possible to perjure yourself by omission, but the bar would be incredibly high, and given that the questions were answered truthfully a subsequent claim that the applicant did not give answers that were not requested to questions that were not asked would be laughed out of a criminal court.

It's not the obligation of an applicant for probate to second-guess possible objections that might be raised, and inform the probate process of everything that their second cousin's aunt might dream up. You appear to think that it is the obligation of an applicant for probate to find out all the people who might be about to object. It isn't. If they want to object, that's their business.

If the OP attached a letter to form PA1 saying "oh, there's a photocopy of something that might be a will", what difference do you think it would make? Who would read it? What would they do with it?

The Germans have a word for seeking out imaginary requirements to obey: vorauseilender Gehorsam. They don't mean it kindly.

Biggles

Yorkshireman99 wrote: »

Given it is likely that the application will be objected to

No, I don't think so. Not formally, in court, anyway. There are no known grounds for the objection.

If one of the photocopy beneficiaries had been a dependent, it might just have been challenged. But not as it has been stated here.

Yorkshireman99

Biggles wrote: »

No, I don't think so. Not formally, in court, anyway. There are no known grounds for the objection.

If one of the photocopy beneficiaries had been a dependent, it might just have been challenged. But not as it has been stated here.

As a first step they can simply add a caveat. Given that they will lose out why would they not object? In any case the applicant for LOA need to be honest.

getmore4less

There is no valid will

With a caveat they get some time to produce one or apply formally with the copy.

Give the caveat a couple of months(or even wait 6 and see if they renew) issue a warning and see if they contest with an appearance.

They are then in a put up or shut up position with their claim of there is a will but we can't find it.

securityguy

Yorkshireman99 wrote: »

As a first step they can simply add a caveat. .

One is placed in mind of Henry IV Part I, Act I, Scene 1.

GLENDOWER
I can call spirits from the vasty deep.
HOTSPUR
Why, so can I, or so can any man;
But will they come when you do call for them?

Anyone over 18 who is willing to pay £20 and fill in a PA8 can place a caveat on any application for probate, for any or no reason. The question is what purpose it serves.

If other prospective executors are looking for a valid will which appoints them, or beneficiaries are looking for a valid will which alters the outcome for them, it gives them time to do so. That is their affair. Until they produce such a valid will, or at least a will which is at least potentially valid, then there is no will, and nothing for someone filling in PA1 to concern themselves with.

PA1 is asking a simple question: do you have the original of what purports to be a valid will? Yes, or no? In the OP's case, the answer is clear: they do not. The end. The photocopy gives the possibility that such a will exists. But so does Auntie Flo's recollection that Auntie Ethel had written on a piece of paper with witnesses that she left her best china to Auntie Edna, and you don't have to declare that on PA1, either.

ETA: PA1 exists for two purposes (a) someone with a will, probably an executor, is applying to be an executor or (b) someone without a will, who has some standing in the long list of people who can apply to administer an intestate estate, is applying to administer an intestate estate.

It is not for either of them to worry about reasons that the grant may not be made. There are a long list of reasons why it might not be. Two people who don't know each other might have different wills. A, or the, will might be in the possession of some random person whom the family don't know but the deceased appointed as executor, so he applies at the same time as the family apply as administrators. It's for this reason that probate exists: for a court, or its nominees, to sort out which of the competing applicants to administer the estate gets the grant, and which don't. The applicants don't need to worry about any of this: they simply apply on the basis they believe they have a right to apply, and provided they are truthful about the basis for the application, that's the end of it. It is not, pace YM, their responsibility to investigate other possible outcomes: they just need to tell the truth about the facts they have in front of them. They don't need to investigate whether there are other wills; they just need to be honest about the will (or absence of will) with which they are dealing.

Spendless

Is the photocopy signed by witnesses? I'm wondering if they know where the original will was going to be kept?

Biggles

Biggles wrote: »

New readers start at post #1

..........

SevenOfNine

OP has confirmed the Will was witnessed - our witnesses had to add their addresses, bit curious as to whether OP has actually tried to find either of them? Surely this Will (or any Will) can't have been witnessed properly with just a signature & printed name, but I'll stand corrected if that IS the case.

Also wondering if OP has tried to contact the other 2 beneficiaries to advise Aunt has died, under no obligation perhaps, but it will be interesting if one of THEM has the original & it bites you/mum in the behind at a later date. Particularly if clearly no attempt to contact them or Will witnesses was made - it's just going to smell of greed, sadly common when there's a death though.

Who knows you/mum have a copy, who has seen it apart from the 2 of you? If the answer is 'no-one' I'm surprised you haven't shoved it in the shredder & claimed "I know nothing", then gone down the intestate route....I'm not suggesting that by the way, there may be massive pitfalls (& it's not my head on any potential chopping block).