Was the will destroyed, or was it missing? A case study
What can you do if you suspect that someone has not died intestate after all? A recent
case highlights why questioning assumptions is important. Certainty the National Will
Register explains.
The contentious trusts and probate team at Meridian Private Client advise people on the options available when a loved one has died and they have apparently been disinherited, or when a family member is acting suspiciously to the client’s detriment.
The below case study outlines how and why solicitors dealing with contentious probate make a will search a key part of their process.
The background
Bill and Janet lived together for 20 years. They had both been married before and Janet had a son, Phillip, from a previous relationship. Janet was diagnosed with a terminal illness in January 2017 and sadly passed away on 25 February 2018. Bill was recovering from a hip operation in hospital at the time of Janet’s death.
Janet had made a will in 2010 and had requested that the original will be sent to her, so that she could store it together with important papers in her bureau. She had told Bill that she had made a will and informed him where it was stored; she also told her closest friends where the will was, and what she wanted to happen after she died.
Two days after Janet’s death, Phillip went into the property and accessed the bureau. He declared to Bill and their friends that he could not find a will. He said that he believed his mother had torn up the will prior to her death, because she decided that she wanted Phillip to receive the entirety of her estate under the rules of intestacy. He said that he was going to apply for a grant of letters of administration accordingly.
Doubts are raised
Bill and their friends were suspicious of Phillip’s behaviour. Unfortunately though, Bill did not have a copy of the will, and the solicitor who prepared the will had also not retained copies, nor kept their file. The solicitor did however suggest to Bill that he should carry out a Certainty will search, using the National Will Register, to see if the will could be located. Bill carried out this search, and the will was located, so he was able to obtain a copy. On reading the will, Bill noted that Phillip only received a relatively small pecuniary legacy, while he had been left the majority of the estate.
Bill received legal advice and applied for a grant of probate with the copy will. Normally, when a testator takes control of the original will and it cannot be found after death, the presumption is that the testator revoked it by destroying it. However, Bill was able to rebut this presumption due to Janet’s constant assertions about her testamentary intentions and Phillip’s activities after Janet’s death.
Mark Abrol, partner at Meridian Private Client, comments: “The Certainty will search enabled a copy will to be located, without which Bill would not have been able to obtain the grant of probate. That would have meant that Phillip would have obtained the entirety of the estate due to the rules of intestacy. Janet’s wishes would not have been upheld and Bill would have been disinherited. Bill would have then had to obtain legal advice on how he could try to obtain a benefit from Janet’s estate that would undoubtedly have been costly and time-consuming.”
About the author
Certainty is the longest established and largest will register in the UK and is the Law Society's endorsed provider of a national will register. To find our more and search for a will, go to www.nationalwillregister.co.uk.
See also