Law Relating to Probate & Wills c. 1915-1925

[George Shaw]

In the period referred to, did Wills have to contain a charging clause?

In the period referred to, what were the rules regarding who could and who couldn't witness Wills and Codicils?

[Peridot]

Hi George Shaw,

The Wills Act, which governs the requirements for valid Wills (together with subsequent case law and statutory amendments and legislation) came into force in 1837, so those rules applied during the period you are referring to when looking at the Will formalities. Even though there have been amendments and further legislation passed since the formalities have basically remained the same. Section 9 of Wills Act 1837 states:-
No will shall be valid unless— (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii) acknowledges his signature,
in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

A codicil to be legally binding would have to be signed and witnessed in the same way and refer to the date of the Will that it relates to.

Section 15 Wills Act 1837 concerns the witnesses to a Will so if any witness to the Testator's signature on the Will should receive a gift under the Will that gift will be void. This also includes spouses of beneficiaries. This is the s.15 wording:-

If any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will.

However if a witness to a codicil (or a spouse of a witness) has been left a legacy under the Will then that gift still operates. It would only be void if there was a legacy mentioned in the codicil to the witness or their spouse that it would become void.

It is only the gift that fails not the whole Will in these circumstances.

As far as remuneration for executors is concerned the general rule is that they may only charge for out-of-pocket expenses for the execution of the duties of the office. An exception to the general rule is:

1. where the Will contains an express chargingclause and the executor is acting in a professional capacity.
2. In relation to the charging clause the actual wording of the clause will be relevant. If you are able to post the clause we may be able to point you in the right direction.

Hopefully the above helps, pop back if you need further guidance.

[George Shaw]

Thanks for the response. A person I know is questioning the validity of the Will of a man who died in 1925. When I have absorbed what you have written, I will get back.

[George Shaw]

The reason for the original post is that the Will seems to me to be unusual in the following ways. The deceased, William Godfrey Lecomber, had been a wealthy man, Mayor of Ruthin, Wales, for a number of years, he had staff and had a wide range of friends and acquaintances. His name on the signed Will is misspelt twice. The 'one liner' Will isn't typical of a man of WGL's standing, the Will being particularly brief. WGL's signature on the Will is atypical when compared to many other samples I have from Council documents. The initial and final probate figures are very different. The newspaper report of the funeral refers to a specific request by the deceased for the carriage to be drawn by black horses, this instruction not being present in the Will. No charging clause present.

[Peridot]

Hi again,

On the face of it the Will is acceptable and although a 'man of his standing' may have prepared a more complicated Will it is up to the testator what they wish to do. He left his estate to his wife which would appear reasonable. The Will is maybe not laid out how they would be if a solicitor prepared it today but again this doesn't invalidate it's content.

The misspelling would not in itself invalidate the Will. I can't see actually see where the misspelling is. As far as the initial and final probate figures are concerned the gross figure is purely assets based. The net figure will have taken into account any debts, mortgages etc as well as any testamentary expenses including the funeral .

Funeral wishes are not legally binding even if they are included in the Will. It is purely an indication of the testator's wishes and could be argued there is a strong moral obligation to comply with their wishes but as I say there would be no legal ramifications for not doing so.

I'm not sure what you are suggesting or wish to achieve exploring this very old Will and the Grant. If it is a wish to show the Will was defective or the Grant should not have been issued then I don't believe there would be any success in pursuing this due to the significant passage of time with regards to the distribution of any assets of the estate. It would be virtually impossible to 'trace' the assets now and in any event any claim against an estate would have to have been made at the time or within 6 mths of the grant being issued I believe. Even if it was possible to show the Will was not as it seems it would be necessary to prove the defect which again with the passage of time would be incredibly difficult if not impossible. I believe there would not be an opening for a claim to be made after this length of time.

Maybe a little more information of what is being sought here would assist us with any further guidance, if we're able to.

[Amethyst]

Maybe he just loved his wife .... interesting family history though by the looks of it ( *resists going down the rabbit hole )

Misspell is Godfred for Godfrey. It's been corrected when they retyped it for the probate record by the looks.

[George Shaw]

Thank you for the detailed responses. First off, the project is largely a local history one and I stand not to gain anything regardless of the outcome. The WGL aspect is only one part of a greater suspicion over the misuse or misappropriation of the assets referred to in the respective Wills of two individuals. I'll post more soon.

[Amethyst]

Did his wife execute her husbands brothers will a few years later? ( I went down the rabbit hole... only a little )

It does sound like there was a LOT of property in the estate but I wouldn't find that he left everything to his wife particularly suspicious. They lost their son a few years earlier didn't they?

[Paul Anchor]

Very interesting. Mrs Lecomber was the executrix of her eldest son's Will (William Eric Lecomber) in August 1928. If you Google William Godfrey Lecomber - Ruthin local history you will be able to see something of WGL's background.

[George Shaw]

Did his wife execute her husbands brothers will a few years later? ( I went down the rabbit hole... only a little )

It does sound like there was a LOT of property in the estate but I wouldn't find that he left everything to his wife particularly suspicious. They lost their son a few years earlier didn't they?

Glad to read that you have at least poked your head into the rabbit hole! Having been researching this for a few years now the rabbit hole has become a veritable warren! We are just awaiting a response from elsewhere on a connected issue then we disclose more in the hope of benefiting from your expertise.

[Paul Anchor]

If suspected malpractice occurred in connection with the handling of an estate in 1925 would any liability fall on the ultimate successor practice and if so would this be covered by professional insurance?

[Peridot]

Hi again,

I would have thought the usual rules on limitation would apply so a

ny claim would have to have been brought within six years of the alleged professional negligence? Any run off indemnity insurance where a firm has ceased trading, is also only required for a six year period. In any event run off indemnity cover was only introduced in 1974 under the Solicitors Act.