Will Question

[ABikeWithBellsOn]

Hi all, I'm really hoping you can help me get a better understanding of what is going on...

My mum passed away a couple of weeks ago, and had one of those form you fill in wills - it was witnessed by 2 nurses at the hospital at the time (this was done in April last year when she was first diagnosed with cancer and they didn't think she would survive the operation to remove it)

Stupidly we never pushed her to update the will, so we've just assumed the one she had was fine.

My mum and dad separated 12 years ago, and he moved back to South Africa (The rest of us are UK based) but they never got divorced, they both moved on with their lives and found new partners and were both very happy. And they haven't spoken to each other at all in those 12 years.

Now there appears to be some problem with the will because my mum asked for everything to be split down the middle between my sister and I (her only 2 children) but hasn't mentioned my dad in the will - we're not getting much information from the probate office other than the 2 poor nurses who signed as witnesses now have to go see a solicitor and sign an affidavit.

Can anyone explain why this is? I just don't understand if the not being divorced is the issue or what else it could be.

Any ideas would be greatly appreciated.

Who is applying for probate?

It may be that someone has filed a notice at the probate office to say that your mum didn't have capacity to make the will (that's what the nurses will be asked to confirm), and/or to say that she should have made provision for your father in the will.

I'm a will writer and in circs where the client is separated but not divorced, I always expressly exclude the estranged spouse so that they can't say that the will writer accidentally left off the spouse.

Thanks for reading and replying Mumblechum1

My Mum's new partner was appointed executor of the estate and he is applying for probate. They've lived together for 10 years now, but I guess that doesn't count for much in this instance

It's a bit of a mystery, tbh. Presumably the partner isn't making a claim? The probate office wouldn't query the will unless someone points out a discrepancy to them, and the only people who are likely to do so are either the partner or the husband.

Just a thought but has your DMum's partner tried ringing the probate office and asking to speak to the Registrar?

If it's a 'form you fill in' type Will then the problem might not be anything to do with the divorce/marriage situation, it could be that they don't believe the Will is valid on its face - that there is an issue with it e.g. the execution clause might not be right, it may not have all the necessary bits & bobs in place. I had a situation once where a home made Will purported to appoint a hospital ward as an executor - cue a long process of following the statute books to trace a corporate body that we could identify as the hospital so that they could extract the grant (and get the money - otherwise would have been bona vacantia). It could be something technical, but if so I have found our local Registrar to be very willing to discuss and help.

As mumblechum1 says, they won't query drafting or beneficial provisions unless someone points it out, but they will ensure that it meets certain requirements for validity - for example, if you sent off a Will that was signed but not witnessed, they would query that. Was it dated? Were there any marks on it e.g. paperclip marks that might indicate that the document could have been incomplete? Just give them a buzz and ask for some explanations, but you may need to speak directly to the Registrar rather than admin staff.

Just come back as had a brief moment of clarity - Affidavit of due execution, that's the words I was grasping for!!!! Could be that the nurses are required to sign one of these to say that the Will was properly executed by your DMum. If you google it you can find some info about why they might be needed - e.g. if the Will hasn't been dated, if the attestation clause isn't present or some other technical matter hasn't been dealt with. Highly unlikely it has anything to do with the beneficial provisions of the Will - it will be much much more likely something technical like this.

Thanks both - I've been thinking about this myself and my mum's partner has forwarded me a copy of the will.

It is one of those forms you fill out, and her partner isn't making a claim (although my sister and I are both going to be passing a percentage of our inheritance to him, because even though him and my mum agreed he wouldn't get anything - well except all the household goods, we still would like him to have something so hopefully he can do the trip to China that they both wanted to do, but never got a chance)

The one thing I did notice was that the will is written in both his and my mum's handwriting, so it may look like it was done at different times, so that may be causing the problem. He did the main bulk and then my mum clarified some of the points (like which jewelry goes to which of us) - I'm hoping that is all it is.

I'll be going down to see him tomorrow and we'll call them while I'm there and see if we can clarify the whole thing.

Thanks so much for all your help.

Ah yes, they are very likely to have a problem with this and to want an affidavit from the witnesses that all of the writing was present when the will was executed. The concern will probably be that your DMum wrote the Will, it was executed, then her DP made subsequent amendments that should have been separately witnessed.

It's lovely that you and your sister have a good relationship with your DMum's DP. Do come back if you have any more questions after speaking to the registry.