Lost Will

My father has recently been determined to be non compis mentis.

He made a will about 10 years ago.

He initiated enduring power of attorney some time ago and myself and a sibling are co-attornies. The process will soon be in place i.e. not finalised yet. A few more weeks.

He asked me to find his will and secure it. I think the solicitor only has a copy.

The will is missing, strangely. What can I do.

coylemj

Do you mean the solicitor has lost the will? Is there an older will in existence?

If there is no will and he is mentally incapable of making a new one, he will die intestate.

The original is missing

coylemj

https://www.boards.ie/discussion/comment/117789528#Comment_117789528

You think the solicitor 'only has a copy'. If what you call the 'original' and the 'copy' were both signed and witnessed then either document can be used to obtain probate.

That's one thing in not sure of. In the past I think I recall the solicitor stressing she had 'a copy' and I didn't think to ask whether it was a photocopy or a signed witnessed copy.

What if it's a photocopy?

coylemj

A photocopy is useless. If the solicitor referred to it as a 'copy', I wouldn't be too confident that it's worth the paper it's written on.

Thanks I'm not sure what protocol solicitors follow.

Seems there are many holes in this part of the law/life. I feel that wills should be more regulated or something.

Thoie

Can you just ask the solicitor straight out:

1. Was the will lodged with her?
2. Is the "copy" she has something that can actually be used to fulfill all the legal bits if your father dies, or is it just a random piece of paper?

Is there anywhere in the house it might be - a filing cabinet or a desk where other documents are stored?

https://www.boards.ie/discussion/comment/117806807#Comment_117806807

I have to find all these things out. It's not where it was and has been for many years. There is jewelry missing also. I am in a bit of a tizzy over this. I reckon I know where it is.. but have no proof.

Furze99

https://www.boards.ie/discussion/comment/117807823#Comment_117807823

= complicated and answers may lie/ only be found within family.

endofrainbow

If only a photocopy is available, might it be an idea to have one of the witnesses (if still alive) to sign an affadavit verifying they witnessed it?

What would be the point of a solicitor keeping a worthless copy?

Stone Deaf 4evr

Sorry to hear of your hassles,

If dealing with a recent death has made me aware of anything, its the fact that there badly needs to be some sort of central database for wills to be lodged to.

listermint

https://www.boards.ie/discussion/comment/117810470#Comment_117810470

Or of course solicitors doing the job they were paid for. I suppose...

naughtysmurf

The solicitor who drew up the will should have the original, everyone else normally only has a copy, solicitor should be able to provide a certified copy, still a copy but with his official stamp on it

Stone Deaf 4evr

https://www.boards.ie/discussion/comment/117810510#Comment_117810510

well think about it this way, if you've the forethought to make a will in your 20's, your solictor could be dead and gone thmeselves, by the time your will is needed.

JimmyVik

Once, when I was in hospital the patient beside me was going in for a risky operation.

He made a will at his bedside and asked myself and another random person in the ward to sign it as witnesses.

About 10 years later I got a call from a solicitor who asked me did I remember that and I said yes.

So they asked me to call down to their office and sign a declaration that that was the will I signed.

All they had was a photocopy and the solicitor explained to me that since nobody can find the original it was up to me to validate this one.

I could see my signature on it and the other guys.

They couldnt contact the other guy, so it was just me there. So I sgned it and they said thankyou very much. That will is now valid thanks to you.

The guy who died had lasted nearly another decade after his operation and everyone had forgotten about the will until then.

coylemj

https://www.boards.ie/discussion/comment/117810426#Comment_117810426

How is anyone to know that the photocopy is not a doctored version of the original text?

coylemj

https://www.boards.ie/discussion/comment/117810555#Comment_117810555

The problem with leaving the original with the solicitor who drew up the will is that executors often encounter delays getting that solicitor to release the will to them if they decide to go to a different solicitor (or go the DIY route) when doing probate.

By all means let the solicitor hang on to a copy, this would be useful if (e.g.) the original was lost or accidently destroyed and the testator needed to make a new one.

naughtysmurf

https://www.boards.ie/discussion/comment/117819388#Comment_117819388

I can only give my experience, I called my mother’s solicitor last Thursday morning & received a certified copy of my recently deceased father’s will Thursday afternoon, my mother required it to formalise their joint bank accounts

coylemj

https://www.boards.ie/discussion/comment/117820049#Comment_117820049

That proves nothing. The original is required for probate.

usernamegoes

https://www.boards.ie/discussion/comment/117811552#Comment_117811552

From what I remember, a witness doesn't need to see the contents of the will which can in fact be covered up. I think I recall that they don't even need to see the signature being made, the testator can sign and then tell the witness that it is their signature.

JimmyVik

https://www.boards.ie/discussion/comment/117821693#Comment_117821693

You are right.

The guy signed it and then both of us witnesses signed it.

Neither of us saw what was in the will.

Then when I had to sign the declaration years later the only thing I saw was my signature on the page, and I had to sign a declaration that that was my signature and that I had witnessed the will being signed.

Peregrinus

https://www.boards.ie/discussion/comment/117821290#Comment_117821290

There is a process for applying for a grant of probate on the basis of a lost will. From memory, it requires a court application; it can't be done through the office alone. You will need evidence (a) that there definitely was a will; it was executed; it was not later revoked or destroyed; and (b) as to the contents of the will. Evidence about (a) can be given by the solicitor who drew up the will, the witnesses who witnessed it, and family members who testify that before his death the deceased told them that he had made a will and appeared to consider that it was still valid. Evidence about (b) can be given by the solicitor who drew up the will testifying about the instructions he got, the drafts and (ideally) copies of the executed will on his files, etc. Also there will need to be evidence about the circumstances in which the will was lost, the steps taken to recover it, etc.

Claw Hammer

https://www.boards.ie/discussion/comment/117791951#Comment_117791951

A photocopy can be useful in certain cases. If there is evidence that the original was destroyed accidentally the court has a discretion to admit the copy. Generally if the testator takes away the original and it can't be found there is a presumption that the testator destroyed it and thus revoked it. If have seen the High Court admit a copy in two cases. Both involved members of the clergy.