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Original poster

Probate/will cock up

26 replies

MangosteenSoda · 28/05/2021 17:37

Short version: My mum is executor to a will that has been going through probate for months.

Today she got an in person visit from the solicitors to say that they have, effectively, cocked up. When the will was signed, one of the beneficiaries of the will was the witness. Apparently this makes her inheritance void. The solicitors are going to send the will and the preceding version to court to see if they can sort it out. This particular beneficiary received the same bequest in both versions of the will. No extra financial gain from the will that was witnessed.

My mum as executor is very stressed about this. Does anyone have experience of this?

OP posts:
DareIask · 28/05/2021 17:42

Hi. What a mess. Your mum could had all her executor responsibility back to the solicitor if she wanted to do that. Or appoint another if she's lost faith in the original

Original poster
MangosteenSoda · 28/05/2021 18:01

Thanks Dare. I don’t think my mum will trust these solicitors to hand over executor duties to them after this. I’ll mention appointing another firm if needed.

I think she’s planning to see what happens with the court ruling on it. I wondered if anyone had experienced similar so I could prepare her as to what she should expect.

I’m guessing that the beneficiary in question could choose to take legal action against the solicitors if she loses out. Apparently it’s around a 6 figure sum, so quite substantial.

My mum is a worrier by nature so I’m really pissed off that she now has to deal with this.

OP posts:
FourWordsImMuNiTy · 28/05/2021 18:10

That’s a lot of money, and a massive cock-up.

The will is still valid, but the gift to the witness will fall to the residuary legatee. The simplest solution would be if the residuary legatee(s) decide that they want to honour the wishes of the deceased and make a variation to that effect so the witness gets what was written in the will. But the temptation of a six figure sum might be too much a strain on their good nature - and if the deceased left the residue to charity then they’d never give it up.

Original poster
MangosteenSoda · 28/05/2021 18:23

I don’t think I understand ‘residuary legatee’. Does that mean closest family?

The person who died and his wife who pre-deceased him didn’t have children or family who they were close to. The way it was described to my mum was that some kind of ‘heir hunters’ set up would need to track down the closest family members on each side of the estate and split it between them.

This would result in the deceased turning in his grave because the previous executor was his cousin. The whole point of the change of executor was because his cousin tried to take control of his finances while he was still alive. She applied for power of attorney over his affairs and claimed he was unfit without his knowledge. He was in full control of his faculties, if a bit deaf. He would still be alive now and enjoying his garden but for Covid. When he found out about that application, he changed executor.

OP posts:
FourWordsImMuNiTy · 28/05/2021 19:06

Aah, tricky.

The residuary legatee is the person (or people) who get what’s left after any specific gifts are given. So if you say “I leave 5,000 to Fred, 10,000 to Gladys and everything that’s left to Harry” then Harry is the RL. If Gladys is a witness to the will then the gift to her fails, her 10,000 becomes part of the residue and Harry gets it. But Harry could quite simply alter the will to give the money to Gladys if he felt it was right to honour the deceased’s wishes.

But if Harry is a witness, which is what your latest post seems to imply, then that bit of the will fails completely, so you’re back to the rules of intestacy, ie it goes to nearest relatives, and it doesn’t sound like they’d be willing to do the right thing.

Cross fingers that the solicitors manage to get it sorted out with their trip to court then. I’m not qualified to know how good their chances are.

Trethew · 29/05/2021 13:27

If the witness/beneficiary person loses the inheritance the deceased wished them to have, would they be able to take action against the solicitors?

OneEpisode · 30/05/2021 14:57

Doesn’t the previous will apply?

tentosix · 30/05/2021 16:53

@OneEpisode

Doesn’t the previous will apply?
According to OP the previous Will was the same
Soontobe60 · 30/05/2021 17:06

I’m confused. How could a third party apply for POA for someone else? The person who applies for POA is the person who may need someone to oversee their affairs should they lose capacity. So in the case of my DM, she has applied for POA and named her children as attorneys. If the third party person also tries to claim that someone is unfit, then most certainly POA cannot be granted as the person giving POA doesn’t have capacity.

Soontobe60 · 30/05/2021 17:08

@OneEpisode

Doesn’t the previous will apply?
I would have thought that it would apply as the most recent one is not legal.
Campervan69 · 30/05/2021 17:33

Was the previous will witnessed correctly though?

prh47bridge · 30/05/2021 22:56

I would have thought that it would apply as the most recent one is not legal.

I'm afraid you would be wrong. A beneficiary signing the will as a witness does not mean that the will is invalid. It simply means that any bequest to that person fails. The previous will therefore does not apply.

Northernlurker · 31/05/2021 00:57

If the current will was not valid the previous will should stand. The main disposal of the estate was still the same. I reckon this will be ok.

Northernlurker · 31/05/2021 01:02

Oh but actually the current will is valid isn't it? And this isn't a drafting error as presumably the solicitors didn't over see the signing? That's a bit tricky then.

Soontobe60 · 31/05/2021 07:20

@prh47bridge

I would have thought that it would apply as the most recent one is not legal.

I'm afraid you would be wrong. A beneficiary signing the will as a witness does not mean that the will is invalid. It simply means that any bequest to that person fails. The previous will therefore does not apply.

Ah I see. But what would happen if the will stated X amount goes to the person who was a witness and Y amount to other parties? Who would get Xs amount?
Original poster
MangosteenSoda · 31/05/2021 08:55

Yes, it seems that the current will is valid but the bequest to the witness gets cancelled. The solicitor said that money would get split between family.

The solicitor did oversee the signing of the will. He came to the deceased person’s house to do it, they needed a witness, deceased person suggested his friend come over to witness it and the solicitor didn’t notice it was a problem.

Afaik there was no problem with the previous will, only that the cousin was named as executor. That one was signed at the solicitor’s office and apparently the solicitor had suggested the cousin as executor because she’s a family member who lives close by. The estate holder, being rather deaf, apparently didn’t realise this and was very angry when he found out, hence the solicitor going to his house to sort it out. I don’t know why he didn’t tell the estate holder in advance that he would need a witness to attend and that it shouldn’t be one of the beneficiaries.

I don’t know much about the POA, only that it happened and my mum helped him get it stopped. I think the cousin got him to sign something and wasn’t truthful about what it was. He said he didn’t allow/agree to it, but had obviously signed the forms. He wouldn’t let the cousin in the house after that. Tbf, she maybe thought she was being helpful.

OP posts:
Northernlurker · 31/05/2021 09:05

The solicitor has liability insurance. That might be how this gets sorted out because they should have seen that issue!

FourWordsImMuNiTy · 31/05/2021 09:24

SoonToBe60, any decent will should specify what happens to everything that’s left over after any specific gifts. So maybe “X to Anne, Y to Bob and everything leftover to be split between Carol and Dave”. Or “Everything to Dave except for 10 grand to the blind donkey sanctuary”. If any specific gift fails then Carol/Dave get it. If the will is so badly drafted that nobody is stated to get “everything else” or if that person can’t get it for some reason then it is as if the person was partially intestate and the next of kin gets it.

prh47bridge · 31/05/2021 09:32

Ah I see. But what would happen if the will stated X amount goes to the person who was a witness and Y amount to other parties? Who would get Xs amount?

If these are all specific amounts, X's share would go to the residuary legatee(s), i.e. whoever receives the estate after the specific bequests have been made.

If X is a (or the) residuary legatee, what happens depends on the wording of the will. If the residuary gift is drafted as a gift to members of a class (e.g. "I leave the remainder of my estate to be split between my children"), X's share goes to the other members of that class.

However, if the gift is not to members of a class but specifically to X (including the situation where X is the only residuary legatee), we have a partial intestacy and X's share must be dealt with under the rules of intestacy.

Original poster
MangosteenSoda · 31/05/2021 09:36

Given how shit the solicitor is, I suspect the will is particularly badly drafted Grin

My mum, the executor, is the other main beneficiary, but based on what she has been told, it’s the ‘intestate’ scenario. If it went to her, it would be fine as she would just give it to the intended recipient.

I think it’s written along the lines of 2k for Katy, 4k for Bob, 6k for the blind donkeys, a dirty teaspoon for evil cousin then 50% of the remainder to both witness and executor. Again, this was suggested by the solicitor. I’m beginning to suspect he might be in the pay of evil cousin.

Yes, I presume the intended beneficiary will have to take legal action against the solicitor.

OP posts:
Northernlurker · 31/05/2021 12:55

It sounds pretty bad. Not least if the residual legatee is somebody who the deceased did NOT want to benefit.

Northernlurker · 31/05/2021 12:56

It should have been drafted to make that clear.

ChateauMargaux · 31/05/2021 13:20

On the face of it, the witness is not entitled to the inheritance but your mother is. She should keep copies of the will and the previous will if she has it and take it to another solicitor for advice. As executor, she should get this advice before it goes to court. I would also request that the current solicitors do not act, ie do not approach the court to have this will set aside and the previous one with the cousin as executor reinstated, until she has been advised of the best course if action which would see the wishes of the deceased carried out as far as is possible within the law.

prh47bridge · 31/05/2021 13:36

@Northernlurker

It should have been drafted to make that clear.
It wouldn't have made any difference. If the estate is partially intestate and evil cousin is entitled to inherit under the intestacy rules, evil cousin will inherit regardless of anything the deceased put in their will.

Agree with ChateauMargaux that the OP needs to get independent legal advice rather than relying on the original solicitors. From the information posted it seems that there may be a claim against the original solicitors for negligence.

FinallyHere · 03/06/2021 17:48

be fine as she would just give it to the intended recipient.

It would be better to do a variation of the will to give it direct to the intended recipient. If it goes via your DM, then it forms part of her estate.

Depending on the amount, could tip her estate beyond the IHT allowance