An undated Will inheritance

[Earmuff1]

I very close to my cousin and she left me her house when she died. Unfortunately my cousin's homemade Will was undated. She had no children and was never married. The executor wrote to the two witnesses to check their attestation and the date the Will was signed. This went well as they both of their statements agreed. The executor then asked the two witnesses to swear an Oath on their attestation. Unfortunately one of the witnesses wrote the wrong date by mistake on his signed oath. He intended make another oath correcting the error, but passed away before this could be done.

The executor now says my cousin's Will is not valid, as the two oaths state the Will was signed on different dates. Even though he has letters from the witnesses agreeing the same date. Is this true? Can I appeal or get the executor removed? Under intestacy rules I would inherit nothing.

[Amethyst]

Who is the executor ? Ie. Would they inherit if your cousin had died intestate ?

A Will doesn't need to be dated to be valid but the witnesses should have both been present at the same time that the testator signed it - they don't need to have signed it on the same date / time etc - really just confirm they were both present when it was signed - do you have the wording of the oath documents ? Is the date error made by one of the witnesses an obvious error or a couple days different from the other witness - and were the previous statements correct ( sounds like they were ) ... Do they confirm they saw the testator sign the will with the other present ? or just state what date they signed the will ?

Tagging Peridot for you for more useful help dealing with this going forward.

[Earmuff1]

The executor does not inherit as he is not a blood relative.

The executor says that if the witness had lived, it would have been the 3rd Oath made by the witness. He corrected the first one because he didn't say a date, but just gave the year. He then made the 2nd 0ath that where he put got the correct date, but the wrong year. Finally he wrote to the executor and stated the correct date and year. He then iced before he could swear an oath on the will.

The other witness made the same changes, but she was able to make the 3dOath. I know this sounds confusing. But the remaining witness finally got the date correct and the deceased witness stated the correct date, although not in an oath. I should also say that the two witnesses are my parents.

The executor is insistent the cousin's Will should not stand. He has also dragged up that in the past my cousin was sectioned several times and feels that because only 3 of us were present at the time it undue influence.

I have explained to the executor, my cousin was not pressured to make the gift and although there was a mix up in the dates the witnesses saw the signing of the Will, it was not intentional and just an accident because they are old. The witnesses were both present at the time the will was signed, but the executor keeps on saying that the last oath of my deceased dad was a different from the oath of my mum.

The he second oath was a simple error as they should have said 29 September 1997, but instead put the 29 September 1996. I do feel the executor has blown this out of all proportion.

On the Will, the deceased and the two witnesses did not include the date the will was signed. But in all of the oaths my parents have clearly stated they saw my cousin sign the Will. What makes matters worst, it has come to light that my parents had separated before my cousin died, but the executor was not told. So he was furious that all of his letters were sent to my mothers address, and has now started asking if the changes in dates by the witnesses are more than coincidental.

I fear ear the relationship between myself and the executor has broken down and do not know if it would be better if he was replaced,

[Peridot]

Hi Earmuff1,

Apologies for the delay we've been laid low with the lurgy!
Do you know if there is any other Will?


There are a number of factors here. For a Will to be valid the testator must:
· have the capacity to make a Will;
· have the intention to make a Will and
· comply with the prescribed formalities
The Formalities - to establish a Will is valid the Will must:
· be in writing; be signed by the testator or by some other person in their presence and by their direction;
· give the appearance that the testator intended by their signature to give effect to the Will; have a signature made or acknowledged by the testator in the presence of two or more witnesses present at the same time; be witnessed and each witness must attest and sign the Will or acknowledge their signature, in the presence of the testator (but not necessarily in that of any other witness)
The law is silent on the dating of wills. To be valid the Will must be signed by the testator (the person making the Will) and the signature must be witnessed by 2 witnesses. s9 Wills Act 1837 sets out the formalities for a valid Will. The relevant section is here:- http://www.legislation.gov.uk/ukpga/...7/26/section/9

However it is always advisable for the Will to be dated. This of course prevents confusion in the event there are previous or subsequent Wills prepared.
It appears that the main issue her is the fact the witnesses unfortunately got dates muddled and then the matter was not able to be clarified due to your father's passing.
Is the executor actually disputing the validity of the Will for undue influence? Have they provided any evidence of this? At the time the Will was prepared was your cousin of sufficient mental capacity and could you prove that they were?
I would strongly advise you to obtain some face to face legal advice on this. It is not as straightforward as just having an executor removed particularly if there has been a question raised over your cousin’s capacity to create the Will.

I would suggest completing a timeline of events and taking this with a copy of the Will if you have one, to a local probate specialist to discuss what options are available to you.

You may be able to get a free or reduced fee initial appointment with a probate lawyer. You can search on our sister site JustBeagle.com for probate specialists in your locality and also those who offer fixed fees.

[Earmuff1]

Thank you for your reply. I will take up your advice and seek legal assistance.