Getting nowhere fast

marleneb1

After instructing my deceased father's solicitor to discover whether the mirror wills  made by him and my stepmother in 2010 constitute mutual wills, we've been told that the solicitor cannot access their 2010 file without the consent of the Executor. Does anyone know if this is correct?
There is no clause in the Wills which state that both parties agree not to revoke the Will making it mutual and therefore binding. But no-one, either on this forum, or anywhere else has said definitively that this 'clause' actually is necessary or in fact exists. The whole thing about mirror/mutual Wills is totally bewildering but now it seems that the file kept by the solicitor when the Wills were drawn up is not available for scrutiny to see if the Wills were intended to be irrevocable as we believe my father expected.
This situation is so stressful. I hope some can give further thoughts. Thank you.

Grumpelstiltskin

Previous thread
Challenging Will - Page 3 — MoneySavingExpert Forum

Marlene please sick to one thread it makes it  easier.

xylophone

After instructing my deceased father's solicitor to discover whether the mirror wills  made by him and my stepmother in 2010 constitute mutual wills, we've been told that the solicitor cannot access their 2010 file without the consent of the Executor. 

https://forums.moneysavingexpert.com/discussion/comment/78414702/#Comment_78414702

This is the solicitor mentioned in the above?

Surely it is the duty of this solicitor to write to the executor of your stepmother's will if he/she believes that this will is invalid?

And how can he/she require permission to consult the notes that he/she made in the client's file?

Puzzled!

marleneb1

Grumpelstiltskin said:

Previous thread
Challenging Will - Page 3 — MoneySavingExpert Forum

Marlene please sick to one thread it makes it  easier.

Apologies.

marleneb1

xylophone said:

After instructing my deceased father's solicitor to discover whether the mirror wills  made by him and my stepmother in 2010 constitute mutual wills, we've been told that the solicitor cannot access their 2010 file without the consent of the Executor. 

https://forums.moneysavingexpert.com/discussion/comment/78414702/#Comment_78414702

This is the solicitor mentioned in the above?

Surely it is the duty of this solicitor to write to the executor of your stepmother's will if he/she believes that this will is invalid?

And how can he/she require permission to consult the notes that he/she made in the client's file?

Puzzled!

Yes the same solicitor. She has said she feels the Executor will be uncooperative and certainly she has been thus far. 
The whole communication with the solicitor is very weird. She said firstly that because of data protection she could not access either of the 2010 Wills drawn up by them for my father and stepmother, even though when my stepmother died this year I rang them and asked for a copy of her Will which they sent to me. And now she says she is unable to access her firm's file without the Executor's permission. She then says she believes that a conflict arises if we wish to question the circumstances under which the Wills were prepared by them and if we wish to pursue this course she will not be able to act for us! I mean, what the ****! (Sorry). Is she correct? My head is reeling.

Mojisola

marleneb1 said:

She then says she believes that a conflict arises if we wish to question the circumstances under which the Wills were prepared by them and if we wish to pursue this course she will not be able to act for us! I mean, what the ****! (Sorry). Is she correct?

If this is the solicitor who wrote the wills, you can't expect her to act for you when you challenge those wills!

sassyblue

Yes I would imagine the solicitor would want the executor to agree to you knowing details of an estate file as the executor is the person the solicitor will be dealing with on behalf of the deceased to see the deceased's wishes executed.  If you aren’t the executor then the entire details of the estate file probably aren’t your business.

I'm not sure mojisola is correct above, I read it that the estate file you wish to view contains the Wills you want enforcing where you are a beneficiary?

if not the poster is correct, the solicitor is hardly going to act for you in challenging the validity of her own file.  Not to mention she’d be a probate solicitor and you might require a litigation solicitor to challenge the Will. If that’s the case you wouldn’t even be able to use the same firm, you need to go elsewhere. In effect they’d be suing themselves!

poppystar

AIUI
OP is wanting this solicitor to confirm that the Will they drew up is a ‘mutual’ Will and therefore binding.
They don’t appear to have confirmed this and are saying they need the permission of the Executor to access the file that might/should contain this information. 
But, if the Will is binding then the Executor would be the OP’s deceased brother as he was Executor of that Will. The new Will not being valid and so the Executor of the new Will wouldn’t have the authority surely? 

I can see that OP is not their client but there seems to be a catch22 here. Why would the new Will Executor give permission for something that would possibly remove her authority (and inheritance!). The deceased and the Executor of the possibly mutual Will are not able to give permission so how can the question ever be answered?

naedanger

marleneb1 said:

After instructing my deceased father's solicitor to discover whether the mirror wills  made by him and my stepmother in 2010 constitute mutual wills, we've been told that the solicitor cannot access their 2010 file without the consent of the Executor. Does anyone know if this is correct?
There is no clause in the Wills which state that both parties agree not to revoke the Will making it mutual and therefore binding. But no-one, either on this forum, or anywhere else has said definitively that this 'clause' actually is necessary or in fact exists. The whole thing about mirror/mutual Wills is totally bewildering but now it seems that the file kept by the solicitor when the Wills were drawn up is not available for scrutiny to see if the Wills were intended to be irrevocable as we believe my father expected.
This situation is so stressful. I hope some can give further thoughts. Thank you.

It sounds like the solicitor does not believe there is evidence from what they have seen that supports the case that the Wills constituted mutual Wills. On that basis they have concluded the Will they hold has been superseded and the deceased's case file belongs to the executor of the later Will. If they believe the earlier Wills were not mutual then I believe they are acting correctly. 

Unfortunately I think your chances of getting the outcome you want is now very remote with neither the wording of the earlier Will nor the solicitor who drafted it supporting your contention that it was irrevocable (and you not having very robust evidence to say otherwise).

marleneb1

Thank you all for your responses and your time. Unfortunately I am no clearer! Can I just ask 2 specific questions?
1. My solicitor's firm drew up the original mirror Wills in 2010. They were not engaged by the Executor named in the new Will for probate. Is it a fact that they are not able to consult their own file notes without the Executor's permission?
2. What differentiates a mirror Will from a mutual Will? Is there a specific clause that makes it binding - surely there must be some specific form of wording making it easy to differentiate one from the other? If there is, what is the point of a mirror Will? 
Thank you so much for your continued patience.

naedanger

marleneb1 said:

Thank you all for your responses and your time. Unfortunately I am no clearer! Can I just ask 2 specific questions?
1. My solicitor's firm drew up the original mirror Wills in 2010. They were not engaged by the Executor named in the new Will for probate. Is it a fact that they are not able to consult their own file notes without the Executor's permission?
2. What differentiates a mirror Will from a mutual Will? Is there a specific clause that makes it binding - surely there must be some specific form of wording making it easy to differentiate one from the other? If there is, what is the point of a mirror Will? 
Thank you so much for your continued patience.

My layman's understanding:
1. The solicitor and their firm can consult their own files whenever they want. However they cannot communicate any information in it to an external party without their client's permission or implied permission. As their client is now dead they will consider their client's executor to be their client.
2. Regarding the difference between mutual and mirror wills see the following:
https://www.clarionsolicitors.com/articles/mutual-wills-explained
So while mutual wills do not need explicit wording to say they cannot in the future be revoked or amended without the other party's consent there needs to be very strong evidence that this is what the parties wished.