Solicitor has lost my uncles will

coylemj

Milk & Honey wrote: »

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?

A person can make a will in a solicitor's office which leaves everything to A, he can then go home and assure everyone that he has left everything to B in order to keep people off his back.

He can also tell specific people that he has left them cash legacies and he can tell the local postman that he has left him his stamp collection.

None of it is worth the paper it's (not) written on.

78.—To be valid a will shall be in writing and be executed in accordance with the following rules...

http://www.irishstatutebook.ie/1965/en/act/pub/0027/sec0078.html

Milk & Honey

coylemj wrote: »

A person can make a will in a solicitor's office which leaves everything to A, he can then go home and assure everyone that he has left everything to B in order to keep people off his back.

He can also tell specific people that he has left them cash legacies and he can tell the local postman that he has left him his stamp collection.

None of it is worth the paper it's (not) written on.

78.—To be valid a will shall be in writing and be executed in accordance with the following rules...

http://www.irishstatutebook.ie/1965/en/act/pub/0027/sec0078.html

The same provision was in the 1837 Wills Act. The St Leonards decision survived it.

coylemj

Milk & Honey wrote: »

The same provision was in the 1837 Wills Act. The St Leonards decision survived it.

The St. Leonard's decision (1875) was made at a time while the 1837 Wills Act was in force so would apply in cases where the applicable legislation was the 1837 act. You can't seriously claim that it still applies to an act of 1965, made 90 years later by a different parliament.

The relevant section of the 1965 act is as follows...

90.—Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.

http://www.irishstatutebook.ie/1965/en/act/pub/0027/sec0090.html#sec90

My interpretation of this section is that where a will exists and there is confusion as to the intention of the testator, extrinsic evidence would be admissible in order to 'fill in the gaps' or 'assist in the construction of' as stated above.

However to suggest that extrinsic evidence would be admissible in order to conjure a will out of the ether, that might be a step too far and you could not rely on the St. Leonard's judgement.

Milk & Honey

coylemj wrote: »

The St. Leonard's decision (1875) was made at a time while the 1837 Wills Act was in force so would apply in cases where the applicable legislation was the 1837 act. You can't seriously claim that it still applies to an act of 1965, made 90 years later by a different parliament.

The relevant section of the 1965 act is as follows...

90.—Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.

http://www.irishstatutebook.ie/1965/en/act/pub/0027/sec0090.html#sec90

My interpretation of this section is that where a will exists and there is confusion as to the intention of the testator, extrinsic evidence would be admissible in order to 'fill in the gaps' or 'assist in the construction of' as stated above.

However to suggest that extrinsic evidence would be admissible in order to conjure a will out of the ether, that might be a step too far and you could not rely on the St. Leonard's judgement.

It is known that there was a will.The existence of it is not being conjured out of the ether. The only question is as to the contents of the will. The St Leonards decision has persuasive authority. The Irish courts have often given effect to unwritten bequests. eg Mccarron v McCarron.

Peregrinus

The first will would have been revoked by the making of the second will, if valid.

You're going to have to go to court to get the second will set aside.

Assuming you succeed in that, then the first will was not revoked; it is still valid, and it governs the distribution of the estate.

However you have the problem that the first will cannot now be found.

I see two possible solutions to this problem:

1. The substance of the first will are reconstructed as best as can be, e.g from the solicitor's file (which should record the instructions he took, drafts of the will, etc, or from evidence about what the testator told people about what was in his will. The court is asked to order that the estate be distributed in accordance with this reconstruction.

2. Everyone who would be entitled on intestacy, and everyone who might reasonably hope to have been mentioned in the putative first will, agrees that the estate is to be distributed in a particular way, and the court is asked to order accordingly.

Option 2 may not be feasible if there is a family member who is a ward of the state, since clearly that person will not be able to agree to (or possibly even understand) what is being proposed. So option 1 looks like your best bet.

HellFireClub

Peregrinus wrote: »

The first will would have been revoked by the making of the second will, if valid.

You're going to have to go to court to get the second will set aside.

Assuming you succeed in that, then the first will was not revoked; it is still valid, and it governs the distribution of the estate.

However you have the problem that the first will cannot now be found.

I see two possible solutions to this problem:

1. The substance of the first will are reconstructed as best as can be, e.g from the solicitor's file (which should record the instructions he took, drafts of the will, etc, or from evidence about what the testator told people about what was in his will. The court is asked to order that the estate be distributed in accordance with this reconstruction.

2. Everyone who would be entitled on intestacy, and everyone who might reasonably hope to have been mentioned in the putative first will, agrees that the estate is to be distributed in a particular way, and the court is asked to order accordingly.

Option 2 may not be feasible if there is a family member who is a ward of the state, since clearly that person will not be able to agree to (or possibly even understand) what is being proposed. So option 1 looks like your best bet.

Is a judge going to just set aside two wills, one of which certainly did exist at some point in time and is valid on the face of it? I don't think this is how things get done in the High Court, it clearly cannot be an intestacy scenario, when the testator did at one point have (1) testamentary capacity and (2) did execute a will in writing, pursuant to the provision of the 1965 Succession Act.

The fact that the will was somehow lost, I don't think could ever be relied upon to argue that the deceased somehow then died intestate.

As I said before and someone has agreed with me above, the first thing that will have to be done is the second will would have to be deemed to not be the last will and testament of the deceased by the High Court, and this would have to be done by whoever was deprived of a gift by virtue of creation of the second will, i.e: whoever was gifted the estate in the first will.

We had all this up in the High Court recently with our own family but this situation here with the OP sounds even worse. At least in our family, there were two wills and an issue of testamentary capacity arose in relation to the creation of the 2nd will which was held to be a valid will by the High Court, notwithstanding the fact that we all knew the testatrix in this case had been suffering with Alzheimer's for a considerable period of time and struggled to recall her children's & grandchildren's names...

coylemj

I agree with you guys, we've probably taken this as far as we can.

Peregrinus

HellFireClub wrote: »

Is a judge going to just set aside two wills, one of which certainly did exist at some point in time and is valid on the face of it? I don't think this is how things get done in the High Court, it clearly cannot be an intestacy scenario, when the testator did at one point have (1) testamentary capacity and (2) execute a will in writing, pursuant to the provision of the 1965 Succession Act.

The fact that the will was somehow lost, I don't think could ever be relied upon to argue that the deceased somehow then died intestate.

I agreed. If the second will is set aside on the grounds of lack of testamentary capacity, then the deceased died testate, and his will was the first will.

The problem is proving the contents of the first will, given that you can't produce it now. But in the absence of the document, you can produce indirect evidence of its contents - showing the instructions given, the early drafts, perhaps even a photocopy of the will prepared for execution or, if God is good, a photocopy of the executed will. And a court can grant probate on the basis of that.

If nothing can be produced - say, the solicitor's file has long since been destroyed and the solicitor involved has no recollection of what was in the will, or has died himself, and the deceased never said anything beyond the fact that he made a will, then you have a real problem. But if all the beneficiaries can be identified, and are of sound mind, then they can agree to distribute the estate however they wish, on the basis that they are the only people with an interest, and there is nobody to challenge them. (They could do this even if the will could be produced, but they didn't like what it said.) But that won't work here, because one of the beneficiaries is himself a ward of court, and so can't agree to an arrangement of this kind.

HellFireClub

Peregrinus wrote: »

I agreed. If the second will is set aside on the grounds of lack of testamentary capacity, then the deceased died testate, and his will was the first will.

The problem is proving the contents of the first will, given that you can't produce it now. But in the absence of the document, you can produce indirect evidence of its contents - showing the instructions given, the early drafts, perhaps even a photocopy of the will prepared for execution or, if God is good, a photocopy of the executed will. And a court can grant probate on the basis of that.

If nothing can be produced - say, the solicitor's file has long since been destroyed and the solicitor involved has no recollection of what was in the will, or has died himself, and the deceased never said anything beyond the fact that he made a will, then you have a real problem. But if all the beneficiaries can be identified, and are of sound mind, then they can agree to distribute the estate however they wish, on the basis that they are the only people with an interest, and there is nobody to challenge them. (They could do this even if the will could be produced, but they didn't like what it said.) But that won't work here, because one of the beneficiaries is himself a ward of court, and so can't agree to an arrangement of this kind.

What about witnesses to the missing will, there must have been at least 2, are any of them alive?

Peregrinus

HellFireClub wrote: »

What about witnesses to the missing will, there must have been at least 2, are any of them alive?

You could call them to prove that the will was made (if you knew who they were - which, without the will, you quite possibly won't). But typically the witnesses will have no idea what's in the will. It isn't any of their business.

HellFireClub

Peregrinus wrote: »

You could call them to prove that the will was made (if you knew who they were - which, without the will, you quite possibly won't). But typically the witnesses will have no idea what's in the will. It isn't any of their business.

It's their business insofar as they need to satisfy themselves that they are witnessing a person executing their last will & testament, as opposed to just a blank piece of paper... Although I see the point you are making, often wills are witnessed by legal secretaries etc, who are not personally known to the testator/testatrix and wouldn't have any reason to know the provisions of the will, only that it is a will and that they are witnessing the person who is executing it.

Peregrinus

HellFireClub wrote: »

It's their business insofar as they need to satisfy themselves that they are witnessing a person executing their last will & testament, as opposed to just a blank piece of paper...

They're just witnessing the signature - i.e. that it is the testator, and not someone else, who is signing. They don't attest to the fact that it's a will, as opposed to something else, that is signed. All they attest to is that the signed document was signed in their presence. They are usually aware that the document is a will, and they are usually not aware of its contents.

Pat Mustard

It is common practise for a solicitor who drafts a Will to act as one of the witnesses. It is likely that this is what happened here.

Assuming that this is the case, he may be able to give evidence as to some or all of the following (especially by reference to files, notes, photocopies of Will, etc.):

1. That there was a written valid Will in existence.
2. That any missing Will was not revoked but lost in his office.
3. Will contents.
4. Beneficiaries and benefits.
5. Testator's mental capacity.

After he has had a chance to familiarise himself with all of the relevant details here, what this solicitor has to say will be very informative.