No signed copies of wills retained

[kramgoon]

Hi,

I am the executor of a friend's will who has now passed away.
Unfortunately, it seems the latest will was not properly executed as it does not seem as though the witnesses were together.

However, the deceased made 5 near-identical wills within the last 8 years of his life. He used the services of a solicitor to draw up the wills (but probably not to oversee the executing).

Again, unfortunately, when as each new will was created, the solicitor destroyed the old one. The solicitor has retained the wills on computer as unsigned Word documents but did not photocopy or scan them (with signatures) before destruction. Consequently, there no copies exist of a signed, witnessed will.

However, I believe this is different to finding an unsigned will (as has been mentioned on this forum). We do know that for around 5 years one of the previous wills would have been valid - we just don't have any of them signed.

So, I guess my question is with no signed copies of any previous wills, would a court make a judgement to support any of them on the basis that the deceased's intentions were absolutely clear. The wills are near-identical and the deceased's instructions were given to a solicitor who prepared and drafted then. The solicitor can., for example, say with some confidence Will 1 was valid between Aug 2008 and Jan 2010, will 2 was valid between Jan 2010 and March 2012 etc etc.

Grateful for any advice.

[Amethyst]

Re: No signed copies of wills retained

How do you know the witnesses were not together when they signed the Will ? Have you asked the solicitor if he oversaw the signing of the Will ?

Has the Will been challenged ?

The court can't just decide to put an invalid will into order - but if everyone agrees they may be able to enter into a Deed of Variation based on what the Will said.

Also possibly the estate may have a claim against the solicitor if he was negligent - possibly for any costs incurred in getting the Deed of Variation sorted.

[kramgoon]

Re: No signed copies of wills retained

Yes, the will is being challenged.
My wife and I were very good friends of the deceased (over 15 years) and his son and daughter who he didn't get on very well with are challenging the will and it's their solicitor who has alleged the witnesses were not together.

The deceased's solicitor said he did not oversee the executing of the will but each time, sent it to the deceased for him to sign and arrange valid execution.

During the deceased's lifetime he gave his son £200,000 to help buy a house. He then left another £200,000 to his daughter in his will but most of the remainder was left to my wife and me. With that in mind, there can be no deed of variation.

Thinking about the previous wills then, would a court consider the penultimate will as possibly valid as it was prepared and drafted by a solicitor who can say to the best of his knowledge is was valid before the latest, possibly invalid one, superseded it.

[Openlaw15]

Re: No signed copies of wills retained

Hi,

I am the executor of a friend's will who has now passed away.
Unfortunately, it seems the latest will was not properly executed as it does not seem as though the witnesses were together.

However, the deceased made 5 near-identical wills within the last 8 years of his life. He used the services of a solicitor to draw up the wills (but probably not to oversee the executing).

Again, unfortunately, when as each new will was created, the solicitor destroyed the old one. The solicitor has retained the wills on computer as unsigned Word documents but did not photocopy or scan them (with signatures) before destruction. Consequently, there no copies exist of a signed, witnessed will.

However, I believe this is different to finding an unsigned will (as has been mentioned on this forum). We do know that for around 5 years one of the previous wills would have been valid - we just don't have any of them signed.

So, I guess my question is with no signed copies of any previous wills, would a court make a judgement to support any of them on the basis that the deceased's intentions were absolutely clear. The wills are near-identical and the deceased's instructions were given to a solicitor who prepared and drafted then. The solicitor can., for example, say with some confidence Will 1 was valid between Aug 2008 and Jan 2010, will 2 was valid between Jan 2010 and March 2012 etc etc.

Grateful for any advice.

In general the law of Wills is that there must be capacity and signed, witnessed etc. Even initials will be sufficient for signing. This deals with the law of Wills. The last signed Will is the effective one (valid Will) regardless if changes where made to the original Will or indeed whether there were new Wills albeit not signed (ie invalid Wills). However, besides the law of Wills a concept called equity (discretionary rights) runs parallel to said law. Equity may step in in some circumstances. Was the testator too ill to sign, had certain steps been taken to gift the beneficiaries, ie were the formalities dealt with? If

[Amethyst]

Re: No signed copies of wills retained

Okay, are both Witnesses alive and able to attest to valid signing ? (or not as the case may be ) It's likely if the witnesses weren't together for that will, they wouldn't have been for the others, especially if the solicitor didn't make clear that it was important they were.

Presumably the son and daughter are challenging that your wife and yourself should be beneficiaries at all and the estate should be distributed in accordance with intestacy rules ?

A will that has been destroyed is invalid. And the solicitor purposely, on instruction, destroyed the will - thus it is completely dead and cannot be resurrected.

[MENTION=39710]des8[/MENTION]

[Amethyst]

Re: No signed copies of wills retained

In general the law of Wills is that there must be capacity and signed, witnessed etc. Even initials will be sufficient for signing. This deals with the law of Wills. The last signed Will is the effective one (valid Will) regardless if changes where made to the original Will or indeed whether there were new Wills albeit not signed (ie invalid Wills). However, besides the law of Wills a concept called equity (discretionary rights) runs parallel to said law. Equity may step in in some circumstances. Was the testator too ill to sign, had certain steps been taken to gift the beneficiaries, ie were the formalities dealt with? If

For ref OL

when as each new will was created, the solicitor destroyed the old one.

[Amethyst]

Re: No signed copies of wills retained

Ahhh actually thinking about it, it could be that the will must be destroyed BY the deceased or if on instruction, in the presence of the deceased ? OL ?

[Openlaw15]

Re: No signed copies of wills retained

Hi,

I am the executor of a friend's will who has now passed away.
Unfortunately, it seems the latest will was not properly executed as it does not seem as though the witnesses were together.

However, the deceased made 5 near-identical wills within the last 8 years of his life. He used the services of a solicitor to draw up the wills (but probably not to oversee the executing).

Again, unfortunately, when as each new will was created, the solicitor destroyed the old one. The solicitor has retained the wills on computer as unsigned Word documents but did not photocopy or scan them (with signatures) before destruction. Consequently, there no copies exist of a signed, witnessed will.

However, I believe this is different to finding an unsigned will (as has been mentioned on this forum). We do know that for around 5 years one of the previous wills would have been valid - we just don't have any of them signed.

So, I guess my question is with no signed copies of any previous wills, would a court make a judgement to support any of them on the basis that the deceased's intentions were absolutely clear. The wills are near-identical and the deceased's instructions were given to a solicitor who prepared and drafted then. The solicitor can., for example, say with some confidence Will 1 was valid between Aug 2008 and Jan 2010, will 2 was valid between Jan 2010 and March 2012 etc etc.

Grateful for any advice.

Signing and attestation of wills

"s. 9, Wills Act 1837:

.
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"

[Openlaw15]

Re: No signed copies of wills retained

Ahhh actually thinking about it, it could be that the will must be destroyed BY the deceased or if on instruction, in the presence of the deceased ? OL ?

Only the deceased/ testator can decide how he wants his gifts to transfer. So it seems logical only he can decide if a former Will is no longer valid and not a solicitor unless the testator instructs the solicitor to do it. If there were at any stage a valid Will but the solicitor destroys it owing to his negligence then the estate can sue that solicitor, or the beneficiaries can as third parties.

[Openlaw15]

Re: No signed copies of wills retained

Okay, are both Witnesses alive and able to attest to valid signing ? (or not as the case may be ) It's likely if the witnesses weren't together for that will, they wouldn't have been for the others, especially if the solicitor didn't make clear that it was important they were.

Presumably the son and daughter are challenging that your wife and yourself should be beneficiaries at all and the estate should be distributed in accordance with intestacy rules ?

A will that has been destroyed is invalid. And the solicitor purposely, on instruction, destroyed the will - thus it is completely dead and cannot be resurrected.

@des8

If the Will is invalid in law the intestacy rules apply robustly. However, Executors at cases in equity (actually, not common law) do have special privileges in some cases where they can claim the gifts for themselves in equity or for the beneficiaries in equity: Strong v Bird. In law though, under the intestacy rules the spouse has entitlement to everything up to a certain value. I believe this is under the new rules.

[Amethyst]

Re: No signed copies of wills retained

£250k, personal possessions, plus half of everything else in a life interest, rest split equally between issue, I think. I don;'t think there is a spouse in the picture in this case though ? so would just be split between the children ( taking into account the lifetime gift ??)

Though I think the point in this is hoping the will is not invalid, and if it is the previous will/s can be revived ... any case law on that where a solicitor destroyed the will on instruction but not in the presence of the testator ?

also any case law on witnesses signing apart ?

[Amethyst]

Re: No signed copies of wills retained

Conditional Revocation ? ( ie only intended to revoke previous will if new will was valid )

Think first we need to know what evidence there is that the Witnesess and testator were never all together at the same time.

[Openlaw15]

Re: No signed copies of wills retained

£250k, personal possessions, plus half of everything else in a life interest, rest split equally between issue, I think. I don;'t think there is a spouse in the picture in this case though ? so would just be split between the children ( taking into account the lifetime gift ??)

Though I think the point in this is hoping the will is not invalid, and if it is the previous will/s can be revived ... any case law on that where a solicitor destroyed the will on instruction but not in the presence of the testator ?

also any case law on witnesses signing apart ?

The valid Will issue requires at least 1) the deceased's signature 2) at least be acknowledge by 2 witnesses present at the same time. The law is strict in this area and if there is no signature it seems the Will cannot be valid on an relevant cases that am aware of. If there were a signature there might have been some leniency, some scope but without it it's apparently invalid.

[Openlaw15]

Re: No signed copies of wills retained

£250k, personal possessions, plus half of everything else in a life interest, rest split equally between issue, I think. I don;'t think there is a spouse in the picture in this case though ? so would just be split between the children ( taking into account the lifetime gift ??)

Though I think the point in this is hoping the will is not invalid, and if it is the previous will/s can be revived ... any case law on that where a solicitor destroyed the will on instruction but not in the presence of the testator ?

also any case law on witnesses signing apart ?

if there's no spouse the gift under intestacy rules passes to the children of the deceased, i believe.

[Amethyst]

Re: No signed copies of wills retained

There are three signatures by the sounds of it, but the argument from the other side is that the witnesses were not together - they don't need to be together on signing, but they do need to be together with the testator when he attests that that is his signature. So he couldn't sign the will on his todd, then pop round one mates house and get them to sign it, then another mates house to get them to sign it, they all have to have been in the same place at the same time at some point, although they could all sign it separately.

Probably we need to know more of the other sides argument and evidence supporting it before going much further xx