4th September, 2019
What to do if you’ve been appointed as an executor in a Will
If you think that you have been appointed as an executor in a Will of a deceased person, the first thing to do would ordinarily be to secure the original Will. This job is often not straightforward, particularly if the Will is not stored with a firm of solicitors.
A person can revoke a Will by destroying it, and therefore you will usually need to provide the original Will to the Probate Registry when you make an application for a Grant of Probate to prove that the Will continues to reflect the deceased’s wishes.
An executor must first make every reasonable effort to locate the original Will. If the Will was prepared by a solicitor then your first step should be to contact them. It may also be useful to contact the deceased’s friends and family, their banks and other professional advisors, and undertake a search of the National Wills Register.
If you are unable to find the original Will within the deceased’s papers, then you will need to try and obtain a photocopy. If the Will was prepared by a solicitor, they will often hold a copy on their file. A photocopy Will allows you to make an application for a Grant of Probate under s54 of the Non-Contentious Probate Rules 1987. You can also apply under this section if you do not hold a photocopy but can produce strong evidence of the Will’s contents.
Applications made without the original Will are not straightforward as there is a presumption that the deceased has revoked their Will if it was last known to have been in their possession, however, provided that as much evidence as possible is collected, and supported by a properly drafted Affidavit, then applications can be successful.
What is an Affidavit?
An Affidavit is a sworn statement and is an important part of the application. It should cover the circumstances surrounding the loss of the Will and what has been done to try to locate it, along with setting out why you believe that the copy Will is the last Will of the deceased.
If no form of copy Will can be located then the Affidavit evidence becomes crucial and will need to be accompanied with a reconstruction of the Will that the executors believe represents the deceased’s wishes.
It is not unusual for such an application to be contested by family members who would stand to inherit if there was no Will. In these circumstances, it is then necessary for the application to proceed to a court hearing so that all interested parties can provide evidence.
Re Moore Case:
The recent case of Re Moore involved an application to prove a Will based on a copy of a signed Will which had been certified by a solicitor. The application proceeded to court as it was contested by the deceased’s daughter. The terms of the certified copy Will were that the estate of the deceased was to be divided equally between her three children and her son-in-law, with a provision that if any of her children died before her then their share would pass to their children.
One of the deceased’s daughters, who shared children with the son-in-law included in the Will, died before her mother, and therefore under the Will, her children would receive her share. The claim was brought by another daughter who did not agree with the son-in-law benefitting from the estate as well as his children. She sought an order that the Will had been destroyed by the deceased.
In this case, the court held that Probate could be granted to the Will based on the certified copy. They did not agree with the daughter’s argument that the Will had been destroyed and found that it was more likely than not that the deceased’s solicitors had retained the original Will and therefore the deceased would not have had the opportunity to destroy it before her death.
If you have been appointed as an executor for a Will and are not sure what to do, contact Rhiannon Edwards from our Wills, Trusts and Tax team.
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