Late Aunt's will mentions non existent family member - what happens next?

pkmid

When my aunt re-did her will in 2018 she named a family member that does not exist. Due to my decision as executor I will allow my cousin to own her property outright. Problem is this requires everyone listed in the will to sign deeds and provide ID. My aunt listed a name which funnily enough was a mixture of her son's first name and my family's surname. I imagine she meant to list my brother. To complicate things she said it was a niece (I'm her only niece). I'm not sure where this leaves us. I'd be more than happy to sign something swearing this person doesn't exist. Apart from my cousin there is no-one else to provide ID as my mum passed away before my aunt did (she was going to be the executor originally). Bit of background: my mum had power of attorney over my aunt due to her mental state, if my mum was aware she had re-done her will incorrectly it would've been changed before it was too late.

My solicitor is painfully slow responding and this whole mess is stressful so it helps if I can find out similar situations on my own.

lisyloo

Was the will witnessed? Are the witnesses alive?
I am wondering if she was compos mentis and if it is valid?

pkmid

lisyloo said:

Was the will witnessed? Are the witnesses alive?
I am wondering if she was compos mentis and if it is valid?

It was a family friend (her and her husband). They are very trustworthy but I don't think they looked through the will just signed it as she requested. I don't think she would've been sound of mind but that would be hard to prove I assume?

elsien

Part of the witness role is to sign to confirm that they feel the person has capacity and understands what they are signing, without coercion.
if you feel the witnesses are trustworthy, then you need to accept that they felt your aunt understood the purpose of the will at the time that she signed it. 

You might be better keeping all the questions in one thread, for consistency. 

pkmid

elsien said:

Part of the witness role is to sign to confirm that they feel the person has capacity and understands what they are signing, without coercion.
if you feel the witnesses are trustworthy, then you need to accept that they felt your aunt understood the purpose of the will at the time that she signed it. 

You might be better keeping all the questions in one thread, for consistency. 

Of course I get that it’s just what happens now with this non existent person having a say? I get what you mean about the one thread. Problem is different parts of the saga have cause issues as it’s gone on. 

elsien

This doesn't cover your exact situation but some similarities given that you know the missing person isn't going to turn up. 
Probate: Missing or unknown beneficiaries – what should executors do? | Private Client Law Blog | Kingsley Napley | Independent Law Firm of the Year 2022

pkmid

elsien said:

This doesn't cover your exact situation but some similarities given that you know the missing person isn't going to turn up. 
Probate: Missing or unknown beneficiaries – what should executors do? | Private Client Law Blog | Kingsley Napley | Independent Law Firm of the Year 2022

Thank you that's helpful!

doodling

Hi,

There are two possibilities:

1. The named person does not exist.

2. The named person does exist but has been referred to incorrectly.

The correct approach differs depending on which of those it is and in the absence of anything else, legal advice is recommended  especially if there is any risk that the beneficiaries might disagree with your interpretation.

As it sounds like you are already doing a deed of variation (so presumably probate isn't contentious) then the other way of dealing with this is ask everyone who the will might be referring to to sign the deed of variation and for the deed to clarify the meaning of the wording.  That eliminates any doubt about the meaning and therefore eliminates the possibility that someone turns up in the future expecting an inheritance.

pkmid

doodling said:

Hi,

There are two possibilities:

1. The named person does not exist.

2. The named person does exist but has been referred to incorrectly.

The correct approach differs depending on which of those it is and in the absence of anything else, legal advice is recommended  especially if there is any risk that the beneficiaries might disagree with your interpretation.

As it sounds like you are already doing a deed of variation (so presumably probate isn't contentious) then the other way of dealing with this is ask everyone who the will might be referring to to sign the deed of variation and for the deed to clarify the meaning of the wording.  That eliminates any doubt about the meaning and therefore eliminates the possibility that someone turns up in the future expecting an inheritance.

Thank you that it helpful, I think it was most likely possibility number 2 and it was meant to be my brother because of the jumble of names, myself and him were her only niece and nephew. I was named as the executor so it would make sense for my brother to be included, he was born in 2000. 

unforeseen

Due to my decision as executor I will allow my cousin to own her property outright

Do you mean that you are doing something different to what the will specifies? 

pkmid

unforeseen said:

Due to my decision as executor I will allow my cousin to own her property outright

Do you mean that you are doing something different to what the will specifies? 

The will wanted trustees. I don’t have anyone other than myself willing but I also don’t want the responsibility.