Obtaining Copy of Will after estate finalised

[Lunamama]

Hi there,

So have previously posted regarding a tricky situation.

My late grandmothers estate has been finalised and unfortunately no copy of the will was ever seen.

The situation was somewhat tricky with the executor and my family as we were estranged from my grandmother.

Due to circumstances my father had to pay my grandmother compensation after she had him sent to prison (a long story and a terrible ordeal all round). To cut a long, painful story short he has been ordered by the courts to continue paying the compensation but needs to prove that my grandmother has passed away and the money goes to the beneficiaries. Well, the only beneficiaries to her will were myself, my sister and my niece.

The court/enforcement agency has told him to obtain a copy of death certificate and will to 1. Prove she died and 2. we are the beneficiaries.

We have requested a copy of the will in writing today and given 7 days to receive it.

If the executor refuses to provide us with this, then we are to go solicitors/court route. The enforcement agency said we were not allowed to tell her why we need a copy of it.

If she refuses both letters from myself and solicitor we have to take her to court to obtain it.

My question is can she destroy the will after estate has been finalised or does she need to keep the will?

Do the solicitors always keep a copy of the will on record? Thinking could we call them and explain the situation?

We think there is something in the will that she has tried to hide from us in the past.

[enaid]

Re: Obtaining Copy of Will after estate finalised

After probate all wills become public, you should be able to trace probate and the will HERE for a small charge

[Lunamama]

Re: Obtaining Copy of Will after estate finalised

I wish it were that simple. The will did not go through probate.

[enaid]

Re: Obtaining Copy of Will after estate finalised

Do the solicitors always keep a copy of the will on record? Thinking could we call them and explain the situation?

Here is some info from the Law Society on keeping wills etc File retention

[des8]

Re: Obtaining Copy of Will after estate finalised

I suppose you could apply to the Probate Registry for an order to exhibit an inventory and account regarding the administration.(Administration of Estates Act 1925 sec 25 (b))
Include in the application an order to show the will.

[Lunamama]

Re: Obtaining Copy of Will after estate finalised

I have a copy of 'accounts and inventory'. They are in inverted commas as I'm not sure how truthful they are. Without a will there is no way to know.

The estate is finalised but I understand we have 6 years to challenge anything.

As I said previously it has become a requirement to see the will in order for my dad to basically pay myself, sister and niece as the sole beneficiaries the compensation. So can I still go through through the probate channels?

[des8]

Re: Obtaining Copy of Will after estate finalised

I think so!
Phone the court and ask them.

[Openlaw15]

Re: Obtaining Copy of Will after estate finalised

Hi there,

So have previously posted regarding a tricky situation.

My late grandmothers estate has been finalised and unfortunately no copy of the will was ever seen.

The situation was somewhat tricky with the executor and my family as we were estranged from my grandmother.

Due to circumstances my father had to pay my grandmother compensation after she had him sent to prison (a long story and a terrible ordeal all round). To cut a long, painful story short he has been ordered by the courts to continue paying the compensation but needs to prove that my grandmother has passed away and the money goes to the beneficiaries. Well, the only beneficiaries to her will were myself, my sister and my niece.

The court/enforcement agency has told him to obtain a copy of death certificate and will to 1. Prove she died and 2. we are the beneficiaries.

We have requested a copy of the will in writing today and given 7 days to receive it.

If the executor refuses to provide us with this, then we are to go solicitors/court route. The enforcement agency said we were not allowed to tell her why we need a copy of it.

If she refuses both letters from myself and solicitor we have to take her to court to obtain it.

My question is can she destroy the will after estate has been finalised or does she need to keep the will?

Do the solicitors always keep a copy of the will on record? Thinking could we call them and explain the situation?

We think there is something in the will that she has tried to hide from us in the past.

What solicitors were involved with the will and or executor? An executor is in effect a trustee however temporary (holding the estate in trust for the deceased), and under trustee law the beneficiaries have the right to request documents based on trustee case law (common law), which in your case is a copy of the will. My question is why would the executor not disclose the will to you as beneficiary so that the right to claim compensation passes from your grandmother to the beneficiaries? Who is the executor, a family member with a conflicting interest? On the disclosure of documentation point, trustees normally surrender things well before court action as they know it will be worse off for them in the longer run.

[Lunamama]

Re: Obtaining Copy of Will after estate finalised

Thank you for your responses.

The executor of the will is my grandmothers niece (my 2nd cousin). I believe that she does not want us to have a copy of the will because there is something in there she doesn't want us to see. There is a big conflict of interest and my gut is telling me that she has not acted wholly honestly. I was estranged from my grandmother.

We signed off the estate etc at the beginning of August last year.

I requested numerous times to see a copy of the Will as one of the main beneficiaries. She would not allow it. As it didn't go through probate it wasn't a public document.

At present the executor does not know that the compensation situation has arisen.

The solicitor merely held the Will, other than that had nothing to do with it. The executor has it now.

I believe I will have to take her to court to get a copy of it, as she is not going to give it up without a fight. If she had nothing to hide, we would have seen it already.

[Openlaw15]

Re: Obtaining Copy of Will after estate finalised

Thank you for your responses.

The executor of the will is my grandmothers niece (my 2nd cousin). I believe that she does not want us to have a copy of the will because there is something in there she doesn't want us to see. There is a big conflict of interest and my gut is telling me that she has not acted wholly honestly. I was estranged from my grandmother.

We signed off the estate etc at the beginning of August last year.

I requested numerous times to see a copy of the Will as one of the main beneficiaries. She would not allow it. As it didn't go through probate it wasn't a public document.

At present the executor does not know that the compensation situation has arisen.

The solicitor merely held the Will, other than that had nothing to do with it. The executor has it now.

I believe I will have to take her to court to get a copy of it, as she is not going to give it up without a fight. If she had nothing to hide, we would have seen it already.

Here is the authority that a trustee (ie executor) must disclose documents on the beneficiary's request: Schmidt v Rosewood Trust Ltd. If the executor will not provide the will document based on this case law authority, tell the executor that you'll report it to the police as a potential fraud.

[Lunamama]

Re: Obtaining Copy of Will after estate finalised

That's great, thank you. Is this UK law?

[Openlaw15]

Re: Obtaining Copy of Will after estate finalised

That's great, thank you. Is this UK law?

It is legally relevant for the UK and this is the direction the court will go too were you to take it to court. The general advice barristers give to the trustees is give beneficiaries the documents they request or face consequences later for what is essentially a breach of trust. The reason for this is that the court has jurisdiction (the right to hear ie intervene, supervise) in trusts' matters.

"General disclosure of trust information - beneficiaries’ requests: 19. This question has been considered in recent years (2003) by the Privy Council in the case of Schmidt -v- Rosewood Trust Ltd [2003] 2 AC 709. It is a PC case on appeal from the Isle of Man, but the principles in it are clearly applicable in England and Wales.
20. What Schmidt -v- Rosewood held was essentially this:
(a) A beneficiary has a right to see disclosure of trust documents.
(b) This right has been described in the past as a ‘proprietary right’, but this is probably not the best way of describing it. Rather, it is better understood as an aspect of the court’s inherent jurisdiction to supervise, and if necessary intervene in, the administration of trusts.
(c) That means that a ‘proprietary right’ is neither necessary nor sufficient for disclosure.
(d) For example - a vested and transmissible interest may not be sufficient to order disclosure where, for example, reasons of confidentiality mitigated against it.
(e) Equally for example - a discretionary beneficiary (i.e. no vested interest) might be entitled to protection from the court of their (limited) interests and could in some circumstances be entitled to disclosure.
(f) The real principle is - the entitlement to disclosure will depend on the circumstances and what is necessary to properly supervise and enforce the trust. There are no hard and fast rules any more.
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21. In particular in Schmidt -v- Rosewood at paragraph 54 the PC held that there are three particular areas where the court might have to come to a discretionary judgment as to what disclosure was appropriate:
(a) Whether a discretionary object should be granted relief
at all?
(b) What classes of documents should be disclosed, and if so whether redaction should occur?
(c) What safeguards should be imposed on use of the documents?
22. As noted above, however, this issue has to be looked at in light of the trustees’ right to exercise discretions without having to give reasons.
23. Taking those principles and applying them, one comes up with a few pointers which should assist in practice:

Who can seek disclosure?
24. Since Schmidt -v- Rosewood it is clear that anybody with a potential interest in the trust can seek disclosure. The question is whether they will get it. Presently interested beneficiaries (life tenants and the like) will be in the strongest position, followed by future beneficiaries (remaindermen). If the future interest is contingent or defeasible then their position is weaker, and the position of discretionary beneficiaries is of course weakest of all.
25. In particular, when determining whether to exercise the discretion to disclose (or the court considering whether to order disclosure) one of the factors to be taken into account is the real probability of the applicant taking a benefit under the trust."