Solicitor has lost my uncles will

misstierney

Okay, I will try keep this short!

My uncle had Alzheimers for years, and three years after he was diagnosed he wrote a different will to the the one he originally wrote. The difference was he left it to a family member who is now a ward of the state. My aunt is contesting this on the grounds he was not in fit state of mind at the time the second will was written.

Anyhow, it turns out now that the solictor firm who had his original will have now lost it. The solicitor who (forgive me for my lack of legal terms) helped him with the second will is now a judge. Basically it appears that it would look very bad if it turned out the second will was wrote up by a man who was ill with Alzheimers - his own doctor was never asked to certify anything, and he would not have considering the state my uncle was in.

My aunt is going to meet her solicitor next week to discuss the matter, but will she have a leg to stand on? With the original will missing, is there anything left to contest?

newmug

What????? A solicitor just "lost" one of the most important documents one of their clients ever composed???????

Predalien

In a hypothetical situation, it would still be possible to have a will deemed invalid for the reason that the person was not of sane mind. A prior will would not be vital for this conclusion, the state of mind at the time of the second will would be the significant factor.

coylemj

Is the aunt you mention the widow of the man who died? If she is and she gets the '2nd will' overturned, is there any earlier will i.e. one written before the will that has been lost?

If not then the rules of intestacy would apply since there would then be no valid will at all. Are there any children of that marriage?

misstierney

I assume I'm not allowed to name the solicitors in question, but yes, they have "lost" his original will.

His original will had left everything to a cousin of his that he was fond of, which everyone feels should still go to that person since it was his wish. So if was the second was deemed invalid, where would his assets / money go?

misstierney

Nope, he was single with no children. The aunt I referred to was his sister, one of three. As far as I am aware it is just those two wills he ever wrote!

Condatis

If the original solicitor has any recollection of the intent expressed in the lost will would this have any standing?

coylemj

misstierney wrote: »

Nope, he was single with no children. The aunt I referred to was his sister, one of three. As far as I am aware it is just those two wills he ever wrote!

In that case if the 2nd will is declared void because of lack of mental capacity, he would be considered to have died intestate in which case his surviving sisters would get one third of the estate each so either they can accept the 2nd will and walk away or contest it and have him declared to have died intestate.

That's assuming the earlier will is never found and both the man's parents are dead.

HellFireClub

coylemj wrote: »

In that case if the 2nd will is declared void because of lack of mental capacity, he would be considered to have died intestate in which case his surviving sisters would get one third of the estate each so either they can accept the 2nd will and walk away or contest it and have him declared to have died intestate.

That's assuming the earlier will is never found and both the man's parents are dead.

I don't think that is correct at all. If the second will was found by the High Court to not be the last will & testament of the deceased, due to the deceased lacking the testamentary capacity to execute a will, then the first will, is the will that would be held to be the last will & testament of the deceased, as opposed to an intestacy arising as you have suggested.

EDIT: How can a solicitor lose a will, is a copy not in the Probate Office?

misstierney

Thank you very much for replies, it has cleared a few things up! Do you think should she complain to the law society about the missing will? Or is that just a long messy road?

misstierney

HellFireClub wrote: »

I don't think that is correct at all. If the second will was found by the High Court to not be the last will & testament of the deceased, due to the deceased lacking the testamentary capacity to execute a will due to having Alzheimer's Disease, then the first will, is the will that would be held to be the last will & testament of the deceased, as opposed to an intestacy arising as you have suggested.

But since the original will is missing (and wrote almost twenty years ago) how would it's contents be proved other that taking someone's word for it?

coylemj

HellFireClub wrote: »

I don't think that is correct at all. If the second will was found by the High Court to not be the last will & testament of the deceased, due to the deceased lacking the testamentary capacity to execute a will, then the first will, is the will that would be held to be the last will & testament of the deceased, as opposed to an intestacy arising as you have suggested.

EDIT: How can a solicitor lose a will, is a copy not in the Probate Office?

If the will can't be found then it doesn't exist. Therefore if the last will is found to be invalid in it's entirety and no earlier will can be found, the deceased is considered to have died intestate.

Wills aren't lodged in the Probate Office until after the testator dies and the administrator/executor applies for probate.

misstierney

HellFireClub wrote: »

EDIT: How can a solicitor lose a will, is a copy not in the Probate Office?

My aunt was called by her solicitor who informed her the solicitors contacted her to say the original was lost. No mention of copies. She is due to meet him next week, unless he informs her of something different. But she is under the illusion from what he had said that there's not much to be done?

HellFireClub

coylemj wrote: »

If the will can't be found then it doesn't exist. Therefore if the last will is found to be invalid in it's entirety and no earlier will can be found, the deceased is considered to have died intestate.

Wills aren't lodged in the Probate Office until after the testator dies and the administrator/executor applies for probate.

PM sent...

HellFireClub

misstierney wrote: »

My aunt was called by her solicitor who informed her the solicitors contacted her to say the original was lost. No mention of copies. She is due to meet him next week, unless he informs her of something different. But she is under the illusion from what he had said that there's not much to be done?

If the situation is one where there was an original will and it has been lost, then there is still a problem, because even if the will hadn't been lost, you have a question arising here as to which will is valid. You'd probably have to go to the High Court to have the question answered, as to which will is the last will and testament of the testator/testatrix, because having been diagnosed with Alzheimer's in itself, doesn't automatically create a situation whereby a person then lacks the testamentary capacity to make a will.

But if the solicitor is admitting that a will was made and has been lost, you have clear grounds for damages there. But the action would have to be taken by whoever was deprived of a gift in relation to the first will going missing, which again brings you back to where you started with the first will and what provisions were contained within the first will as to who gets what...

coylemj

HellFireClub wrote: »

If the situation is one where there was an original will and it has been lost, then there is still a problem, because even if the will hadn't been lost, you have a question arising here as to which will is valid. You'd probably have to go to the High Court to have the question answered, as to which will is the last will and testament of the testator/testatrix, because having been diagnosed with Alzheimer's in itself, doesn't automatically create a situation whereby a person then lacks the testamentary capacity to make a will.

Agreed in principle but the OP did say that the uncle was in no fit state to make a will so we'd have to assume for this discussion that the second will is likely to be overturned because he was not of a 'sound disposing mind'.

misstierney wrote: »

Basically it appears that it would look very bad if it turned out the second will was wrote up by a man who was ill with Alzheimers - his own doctor was never asked to certify anything, and he would not have considering the state my uncle was in.

HellFireClub wrote: »

But if the solicitor is admitting that a will was made and has been lost, you have clear grounds for damages there. But the action would have to be taken by whoever was deprived of a gift in relation to the first will going missing, which again brings you back to where you started with the first will and what provisions were contained within the first will as to who gets what...

The problem here is that the will was made in a solicitor's office and then presumably locked away in the safe prior to it getting mislaid. The uncle could have told half the town that he left them something in the first will. Can all of them roll into court and claim damages? Somehow I doubt it.

HellFireClub

coylemj wrote: »

The problem here is that the will was made in a solicitor's office and then presumably locked away in the safe prior to it getting mislaid. The uncle could have told half the town that he left them something in the first will. Can all of them roll into court and claim damages? Somehow I doubt it.

I hear ya, but if there is no actual evidence left of the first will having been created, how come the solicitor for that will is claiming that it has been lost as opposed to never having been executed in the first instance? There must be some evidence then that this will did in fact exist at some point in time.

Regarding the first point you made, my grandmothers will was found by the High Court to have been legal, even though we all know she had Alzheimer's when she made it, and there was a formal medical diagnosis around the same time.

coylemj

HellFireClub wrote: »

I hear ya, but if there is no actual evidence left of the first will having been created, how come the solicitor for that will is claiming that it has been lost as opposed to never having been executed in the first instance? There must be some evidence then that this will did in fact exist at some point in time.

The OP is somehow aware that there was an earlier will and the firm of solicitors is not denying this. There appears to be a tacit admission that they lost it.

HellFireClub wrote: »

Regarding the first point you made, my grandmothers will was found by the High Court to have been legal, even though we all know she had Alzheimer's when she made it, and there was a formal medical diagnosis around the same time.

Of course no two cases are the same and when you're dealing with a progressive disease like dementia, it can develop at different rates in different people. The OP seems to suggest that three years after being diagnosed with Alzheimer's, his uncle was in no fit state to make a will.

Milk & Honey

coylemj wrote: »

In that case if the 2nd will is declared void because of lack of mental capacity, he would be considered to have died intestate in which case his surviving sisters would get one third of the estate each so either they can accept the 2nd will and walk away or contest it and have him declared to have died intestate.

That's assuming the earlier will is never found and both the man's parents are dead.

Extrinsic evidence can be called to prove the contents of a will.

Lord St leonards died at Boyle Farm, Thames Ditton, in January 1875, aged 93, and was succeeded in the barony by his grandson, Edward. After his death his will was missing, but his daughter, Charlotte Sugden, was able to recollect the contents of a most intricate document, and in the action of Sugden v. Lord St Leonards (L.R. 1 P.D. 154) the court accepted her evidence and granted probate of a paper propounded as containing the provisions of the lost will. This decision established the proposition that the contents of a lost will may be proved by secondary evidence, even of a single witness. It is said that Lord St Leonards was in the habit of reading his will every night, that his daughter Charlotte had to listen to it and over some years memorised it and that this became a well known fact in legal circles.

Pat Mustard

There may be a photocopy of the second Will somewhere. There is a procedure whereby a Will can be proved in terms of copy.

Perhaps the OP could ask the relevant firm of solicitors if a photocopy of the second Will is available.

In relation to the issue of whether the testator was of sound disposing mind at the time that he executed his second Will, it would be interesting to know the view of the solicitor (now a judge?) who drafted said Will. One would assume that this solicitor held the view that the testator was of sound disposing mind when he executed the Will, and that said solicitor would be prepared to swear an affidavit to that effect.

Milk & Honey

The Mustard wrote: »

One would assume that this solicitor held the view that the testator was of sound disposing mind when he executed the Will, and that said solicitor would be prepared to swear an affidavit to that effect.

Solicitors are not doctors! A solicitor cannot give medical evidence. If there is evidence led that this person had symptoms of Alzheimers three years before he made the will, the solicitors opinion as to his soundness of mind will not matter a damn.

trishasaffron

Milk & Honey wrote: »

Solicitors are not doctors! A solicitor cannot give medical evidence. If there is evidence led that this person had symptoms of Alzheimers three years before he made the will, the solicitors opinion as to his soundness of mind will not matter a damn.

Not true. A solicitor's evidence as to testamentary capacity is relevant though not determinative. The test is not whether someone had alzheimers or not but whether the testator had capacity to make a will which could be a lower standard.

Pat Mustard

Milk & Honey wrote: »

A solicitor cannot give medical evidence.

A strawman argument, since that's not what I wrote. Not terribly helpful either. See below.

Milk & Honey wrote: »

If there is evidence led that this person had symptoms of Alzheimers three years before he made the will, the solicitors opinion as to his soundness of mind will not matter a damn.

The solicitor can give evidence of his opinion that his client was lucid when the Will was executed.

Milk & Honey

The Mustard wrote: »

A strawman argument, since that's not what I wrote. Not terribly helpful either. See below.



The solicitor can give evidence of his opinion that his client was lucid when the Will was executed.

That is a matter for expert evidence, which would not be accepted by a court from a person not medically qualified.

Pat Mustard

Milk & Honey wrote: »

That is a matter for expert evidence, which would not be accepted by a court from a person not medically qualified.

Medical evidence of a sound disposing mind will be preferred by a court, and this may indeed be available in this instance.

However, you have written is that a solicitor's evidence is of no value. That is not correct.

Where medical evidence is not available, a solicitor may give evidence that his client had a sound disposing mind; insofar as the testator knew that he was signing a Will and knew the effect of it, knew the nature and extent of his estate, and knew who he intended to benefit from his Will.

Milk & Honey

The Mustard wrote: »

Medical evidence of a sound disposing mind will be preferred by a court, and this may indeed be available in this instance.

However, you have written is that a solicitor's evidence is of no value. That is not correct.

Where medical evidence is not available, a solicitor may give evidence that his client had a sound disposing mind; insofar as the testator knew that he was signing a Will and knew the effect of it, knew the nature and extent of his estate, and knew who he intended to benefit from his Will.

In this case the individual was known to have alzheimers and family members were aware of the persons state of mind, so there would be medical evidence of diagnosis and evidence of family members. The weight which would be given to a solicitors opinion (who was of course being paid to draw up the will) would be minuscule.

Pat Mustard

Milk & Honey wrote: »

In this case the individual was known to have alzheimers and family members were aware of the persons state of mind, so there would be medical evidence of diagnosis and evidence of family members. The weight which would be given to a solicitors opinion (who was of course being paid to draw up the will) would be minuscule.

Now you are writing something quite different.

You previously wrote that solicitors could not give evidence as to capacity to execute a Will.

Pat Mustard

Scammell v Farmer [2008] EWHC 1100 (Ch)

The court accepted the evidence of an experienced solicitor who had witnessed a Will, as to the testamentary capacity of the testatrix. The judge commented that it would take persuasive evidence to the contrary to undermine that opinion.

Good night.

coylemj

Milk & Honey wrote: »

Extrinsic evidence can be called to prove the contents of a will.

Lord St leonards died at Boyle Farm, Thames Ditton, in January 1875, aged 93, and was succeeded in the barony by his grandson, Edward. After his death his will was missing, but his daughter, Charlotte Sugden, was able to recollect the contents of a most intricate document, and in the action of Sugden v. Lord St Leonards (L.R. 1 P.D. 154) the court accepted her evidence and granted probate of a paper propounded as containing the provisions of the lost will. This decision established the proposition that the contents of a lost will may be proved by secondary evidence, even of a single witness. It is said that Lord St Leonards was in the habit of reading his will every night, that his daughter Charlotte had to listen to it and over some years memorised it and that this became a well known fact in legal circles.

Are you taking the p1ss? The uncle made a will in a solicitor's office, he did not take the will home with him and he did not read it to his (non-existent) daughter every night.

Since the (first) will was made with the help of a solicitor and the original was kept in the solicitor's office, it's highly likely that the solicitor who drew up the will has zero recollection of the contents of the will so with the loss of the physical document, I say the situation is the same as if that will was never made in the first place.

Pat Mustard

coylemj wrote: »

Are you taking the p1ss? The uncle made a will in a solicitor's office, he did not take the will home with him and he did not read it to his (non-existent) daughter every night.

Since the (first) will was made with the help of a solicitor and the original was kept in the solicitor's office, it's highly likely that the solicitor who drew up the will has zero recollection of the contents of the will so with the loss of the physical document, I say the situation is the same as if that will was never made in the first place.

People often ask their solicitor for a photocopy of their Will. It's possible that there is a copy of the Will either at the testator's house or on a file at the solicitor's office.

Also, when a solicitor drafts a Will, he takes written instructions. In fairness, these are usually kept with the original Will, so they may also be lost. The possibility remains that they are there in the office though.

Also, it is still possible that there is information saved to computer in the solicitor's office.

Ok, now I am really going to bed.

Milk & Honey

coylemj wrote: »

Are you taking the p1ss? The uncle made a will in a solicitor's office, he did not take the will home with him and he did not read it to his (non-existent) daughter every night.

Since the (first) will was made with the help of a solicitor and the original was kept in the solicitor's office, it's highly likely that the solicitor who drew up the will has zero recollection of the contents of the will so with the loss of the physical document, I say the situation is the same as if that will was never made in the first place.

The o/p say he and his relatives were aware of the contents of the will, which appears to have been very simple. How? What is to stop them giving evidence about how they learned of the provisions of it?