No signed copies of wills retained

[Amethyst]

Re: No signed copies of wills retained

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

Indeed. I believe that's what the other side are hoping for.

[Openlaw15]

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.

Revocation is a defence to a contract, ie where one doesn't want to perform their role. In Wills law the deceased is free to revoke, amend Wills right up to the point of their death, ie any time during their life. I thought best chance the Op has is to challenge the Will based on Strong v Bird, where the executor claims the gift for their self, the estate, or the beneficiaries. However, he must be appointed as Executor. If the Will is not valid there can be no appointed executor. So, no go here!

[Openlaw15]

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

Sharon, at least two witnesses must be present together to either witness the deceased's signature or they both acknowledge it some how, ie via a memorandum to the Will etc.

[kramgoon]

Re: No signed copies of wills retained

I spoke to the witnesses and they more or less confirmed they were not together.

I was more optimistic about having the penultimate will (albeit destroyed) reinstated as the latest will which revoked it is itself invalid.

The solicitor destroyed all previous wills as they were revoked by a new will. Whether this was done at the testator's request or simply because the solicitor felt this was good practice, I don't know.

Under these circumstances is there still a case for suing the deceased's solicitor for negligence or at least a lack of duty and care. The solicitor drew up 5 wills for the testator, none of which can now be used. There seems little point in seeking professional services only to have this outcome.

[Openlaw15]

Re: No signed copies of wills retained

I spoke to the witnesses and they more or less confirmed they were not together.

I was more optimistic about having the penultimate will (albeit destroyed) reinstated as the latest will which revoked it is itself invalid.

The solicitor destroyed all previous wills as they were revoked by a new will. Whether this was done at the testator's request or simply because the solicitor felt this was good practice, I don't know.

Under these circumstances is there still a case for suing the deceased's solicitor for negligence or at least a lack of duty and care. The solicitor drew up 5 wills for the testator, none of which can now be used. There seems little point in seeking professional services only to have this outcome.

Negligence = breach of duty of care. I cannot understand why the solicitor would destroy a Will even if it were being replaced by a successor Will, where that Will or any Will in fact was not signed. The Will without a signature is not worth a tin of beans, as the signature proves the deceased's intention to pass gifts but a Will document without signature proves nothing, unfortunately. My question has to be why didn't he at least sign the last Will before he died? Was he too sick to sign it. He could have used codicils to amend the Will without needing a new Will every time there were changes.

[kramgoon]

Re: No signed copies of wills retained

Each new will was signed.

Presumably, when the testator returned a new will to the solicitor for 'safe-keeping', the solicitor destroyed the old, superseded one.

If the solicitor was adamant it was good practice to destroy old wills to avoid confusion, I would have thought in this day and age it would have been simple to scan it before it was destroyed. At least you would then have had a copy of it signed, albeit only in pdf format on the PC.

[Openlaw15]

Re: No signed copies of wills retained

Each new will was signed.

You state this at post 1 "......Consequently, there no copies exist of a signed, witnessed will..." and "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."

&

"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.

Presumably, when the testator returned a new will to the solicitor for 'safe-keeping', the solicitor destroyed the old, superseded one.

If the solicitor was adamant it was good practice to destroy old wills to avoid confusion, I would have thought in this day and age it would have been simple to scan it before it was destroyed. At least you would then have had a copy of it signed, albeit only in pdf format on the PC.

Ok, despite the confusion we now know that the deceased signed the Will. You may be able to get around the Witnesses if they at least acknowledged the Will's signature, even if they didn't sign it. So, you will need evidence of this.

[Amethyst]

Re: No signed copies of wills retained

If the solicitor did not destroy the will on the instruction of the testator, but did it as 'good practice', then there could be a case. The new will would have been intended to revoke the previous will but there's nothing to say ( as yet) he intended to destroy the previous will even if the new will was invalid by the way the witnesses signed it ( separately ). It could be argued that as the new will was invalid then the previous will stands, and it was destroyed without any instruction or presence of the testator ( so Conditional Revocation ) Not an easy argument though ( and OL probably won't agree ) and you would need legal advice.

What does the will say above the witnesses signatures ? ( the attestation)
How much are you supposed to get if the will were valid ( ie. is it worth a battle over?)
Do you happen to know if it were the same witnesses who signed the previous will ?
Also, do you know if the son is arguing with his sister over the £200k lifetime gift ?

[Amethyst]

Re: No signed copies of wills retained

Ok, despite the confusion we now know that the deceased signed the Will. You may be able to get around the Witnesses if they at least acknowledged the Will's signature, even if they didn't sign it. So, you will need evidence of this.

They all signed it OL. The point is that the witnesses signed it at different times/places (allegedly)

[Openlaw15]

Re: No signed copies of wills retained

They all signed it OL. The point is that the witnesses signed it at different times/places (allegedly)

Ok, thanks for clearing that up. There is a case that deals with where at least two witness don't sign in the presence of the testator. It is sufficient if the testator requests that they sign the Will if the testator puts the Will say on the table: Daintree v Butcher (1888). Were there at least two people in the room at any one time who witnessed at least the signature of deceased, they do not need to have witnessed the Will itself, just the deceased's signature: Re Gunstan (1882). Even the testator (deceased) saying he has come to execute a Will and shows the witnesses is sufficient acknowledgement: Weatherhill v Pearce (1995)

[des8]

Re: No signed copies of wills retained

Just come in .
Interesting thread... CAB site has this to say about Will destruction (I italicised part and will search for cases later):

If you want to destroy a will, you must burn it, tear it up or otherwise destroy it with the clear intention that it is revoked. There is a risk that if a copy subsequently reappears (or bits of the will are reassembled), it might be thought that the destruction was accidental. You must destroy the will yourself or it must be destroyed in your presence. A simple instruction alone to an executor to destroy a will has no effect. If the will is destroyed accidentally, it is not revoked and can still be declared valid.
Although a will can be revoked by destruction, it is always advisable that a new will should contain a clause revoking all previous wills and codicils. Revoking a will means that the will is no longer legally valid.

As per WILLS ACT 1837 sec 20

[des8]

Re: No signed copies of wills retained

The Law Society advice to solicitors regarding will retention makes for interesting reading as well:http://www.lawsociety.org.uk/support...s-and-probate/


It seems to me that OP has a mountain to climb to prove a destroyed will.
If he wants to obtain probate for a destroyed (but possibly still valid) will, he will need the solicitor who destroyed it to admit to breaching SRA guidelines. and produce a witness statement for the probate court.

In Ferneley v Napier [2010]EWHC 3345 where the claimant tried to prove a destroyed will on the basis of oral evidence, it was ruled that such evidence was not sufficient to satisfy the provisions underlying the Wills Act requiring physical evidence.

There may be more mileage in proceeding against solicitor for negligence in not retaining the revoked wills

[kramgoon]

Re: No signed copies of wills retained

The will states "Signed by xxxxx on <date> to give effect to this Will, in the presence of two witnesses at the same time, who have each signed this Will, in the presence of the Testator".

However, the family's solicitor has alleged in writing to us that the testator signed the will in front of the first witness (who then signed it) and then took the will to a different office and the second witness signed it (after confirming it was his signature). They both signed it in front of the testator but it's claimed they were not together at any time when the testator signed it or affirmed his signature.

The two witnesses on the last will were definitely not the same witnesses for any previous will but I do not know who signed those.
But clearly the circumstances of the signing of the latest will and all other previous wills seems to have been different.

The deceased gave his son £200k some years ago and then left his daughter an equivalent £200k in his will.
Then, affter a few other small legacies to others , he left the remainder of his estate to my wife and I (also around £200k, so it's a reasonable amount and yes I believe, worth a battle).

Regarding the destruction of the previous wills, I don't whether the solicitor destroyed them off his own bat or whether he did it at the request of the testator.
My argument is that the testator's solicitor should have retained signed copies of the destroyed wills (either in hard copy or as a pdf on a PC) just in case there was a problem with the latest will, as there clearly has been. It shows a complete lack of care on his part for us to now be in this situation. The testator sought his professional services to help produce 5 wills (over a 5 year period) so his wishes could be carried out and his estate bequeathed as he wanted and now none of that is happening because of the solicitor's incompetence and lack of forethought.

[kramgoon]

Re: No signed copies of wills retained

With regards to your last point, the latest will did contain a statement to "revoke all previous wills" etc but that latest will may itself be invalid because of an issue with the witnesses so the revocation statement surely does not stand.
The problem with all the previous wills is that no signed copies were retained.
I do not know whether the solicitor destroyed them on his own volition or whether he was taking instruction from the testator to destroy them but they were certainly not destroyed in the presence of the testator.

[Openlaw15]

Re: No signed copies of wills retained

Just come in .
Interesting thread... CAB site has this to say about Will destruction (I italicised part and will search for cases later):

If you want to destroy a will, you must burn it, tear it up or otherwise destroy it with the clear intention that it is revoked. There is a risk that if a copy subsequently reappears (or bits of the will are reassembled), it might be thought that the destruction was accidental. You must destroy the will yourself or it must be destroyed in your presence. A simple instruction alone to an executor to destroy a will has no effect. If the will is destroyed accidentally, it is not revoked and can still be declared valid.
Although a will can be revoked by destruction, it is always advisable that a new will should contain a clause revoking all previous wills and codicils. Revoking a will means that the will is no longer legally valid.

As per WILLS ACT 1837 sec 20

If a Will has been destroyed whether accidentally or with the deceased's permission, how can a destroyed Will be declared valid? If a Will has been revoked but not destroyed it could be revived providing the formalities: signed, witnessed are again dealt with. However, if the Will has been destroyed it no longer exists so cannot be revived, ie cannot be made valid.