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Wills
My wifes aunt made a will via her solicitor in February 2007 leaving her house and contents to my wife. In October 2007 because of undue pressure applied by her two surviving sisters, and having been fed lies, she cancelled that will, by telephoning her solicitor. The request was executed by the solicitor tearing up the will, without preparing any document requiring my wifes aunts signature. Recently she decided that she wanted to revive the will, and had told my wife on more on one occasion, within the space of a few days, and in the prescence of the executor of the cancelled will, that she really wanted my wife to have her house and contents, and was adamant that she wanted to leave nothing to her sisters, who are already well off. Arrangements were made for the solicitor to call at the lady's home to sort the will again, but sadly she was found dead, in her home, early on the morning of the appointment with the Solicitor. Hence the will was not renewed. The sisters are now treating the estate as being without a will, knowing that they will benefit, since there is no will. They are in ransacking the houe, and are planning to remove the contents, in order to sell the house. A surviving brother has been nominated for to arrange for the distribution of the estate. I would be much obliged for some advice in this matter. Is the will cancelled by a telephone call, still valid.? Also can these greedy sisters be stopped from removing the contents, which may yet be my wife's, from the house. All advice welcome.
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if as it seems the aunt died intestate, then the assests will be distributed under intestacy rules, nothing to do with the sisters being greedy it's just the law.
Unless she wasnt of sound mind when she rescinded the will (which dosen't sound like the case) then she was perfectly able to discern truth from lies if she wanted to and make decisions accordingly.
Unfortunately, saying you want to leave someone something and actually doing it in law are two different things, and it seems like the aunt simply left it too late
Unless she wasnt of sound mind when she rescinded the will (which dosen't sound like the case) then she was perfectly able to discern truth from lies if she wanted to and make decisions accordingly.
Unfortunately, saying you want to leave someone something and actually doing it in law are two different things, and it seems like the aunt simply left it too late
If everyone, including the executors, believed the will to be valid and the solicitor was simply saying it was revoked by telephone, then it would be questionable.
However, it seems as if the lady was known personally to the solicitor and it is common knowledge that she did indeed make that telephone call to revoke it.
Destroying the will is a valid and effective way of revoking the will which means she died intestate.
However, it seems as if the lady was known personally to the solicitor and it is common knowledge that she did indeed make that telephone call to revoke it.
Destroying the will is a valid and effective way of revoking the will which means she died intestate.
The will is still valid.
S20 Wills Act 1837 provides
No will or codicil, or any part thereof shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner herein-before required, or by some writing declaring an intention to revoke the same and executed in the matter in which a will is herein-before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.
The important bit is the "burning, tearing or otherwise destroying the same BY THE TESTATOR, OR BY SOME PERSON IN HIS PRESENCE". Neither happened in this case.
You need to act quickly.
First lodge a caveat with the Probate Registry immediately - this prevents them obtaining the Grant of Representation, it is a simple form that you fill in but you MUST get all the details absolutely correct. Secondly take legal advice (preferably from a member of ACTAPS or STEP) - you may need an injunction to prevent any further dissipation of the assets.
There are also issues here with professional negligence of the solicitor - so he should be joined in any action since I would expect his PI insurance to pay the costs.
s20 seems extremely clear on the point. However, I will check the relevant case law a bit later just to confirm the position.
S20 Wills Act 1837 provides
No will or codicil, or any part thereof shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner herein-before required, or by some writing declaring an intention to revoke the same and executed in the matter in which a will is herein-before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.
The important bit is the "burning, tearing or otherwise destroying the same BY THE TESTATOR, OR BY SOME PERSON IN HIS PRESENCE". Neither happened in this case.
You need to act quickly.
First lodge a caveat with the Probate Registry immediately - this prevents them obtaining the Grant of Representation, it is a simple form that you fill in but you MUST get all the details absolutely correct. Secondly take legal advice (preferably from a member of ACTAPS or STEP) - you may need an injunction to prevent any further dissipation of the assets.
There are also issues here with professional negligence of the solicitor - so he should be joined in any action since I would expect his PI insurance to pay the costs.
s20 seems extremely clear on the point. However, I will check the relevant case law a bit later just to confirm the position.
Found a case almost entirely on point (have not seen full transcript yet, have someone obtaining this for me).
In the Goods of Kremer (1965) 110 SJ 18. A will was held not to be revoked when it was burned by a solicitor in his office after the testatrix had telephoned him with a request to destroy it. The solicitor was adjudged to have made a "considerable professional error".
Seek legal advice as a matter of urgency.
In the Goods of Kremer (1965) 110 SJ 18. A will was held not to be revoked when it was burned by a solicitor in his office after the testatrix had telephoned him with a request to destroy it. The solicitor was adjudged to have made a "considerable professional error".
Seek legal advice as a matter of urgency.
No answer here for you as it seems as thought someone is very clued up on this area of the law but just to say how sorry i am for you and your wife. Its a horrible thing to have to go through and it never ceases to amaze me how quickly greed can set in when there is a death in the family. My circumstances were totally different but the greed aspect was there from family members who never once showed any interest beforehand but they quickly come out of the woodwork at the mere mention of money etc. I wish you and your wife good luck and get what was initially intended for you. Keep your chin up :-)
There wasa typo in my posting so I'll resubmit:
Barmaid- do you know how anyone is supposed to be able to prove or disprove that the testator was present for the tearing up/destroying of the will . Is there a need for some written testimony confirming the will was destroyed in accordance with the Wills Act? Thanks.
Barmaid- do you know how anyone is supposed to be able to prove or disprove that the testator was present for the tearing up/destroying of the will . Is there a need for some written testimony confirming the will was destroyed in accordance with the Wills Act? Thanks.
To...Barmaid !. Since you have been so helpful, and would seem to have a very good knowledge of civil law, I enclose quote from a Legal source, and wondered if you could interpret what is meant by this statement.
"If the appointment did not take place and the solicitor has not written a signed document proving that your wife's aunt had cancelled the first will, and wrote a new document proving that your wife is the beneficiary of the property after her death, your, your wife can use it as a legal document considered as a will to ask for her rights
under inheritance after death".
Your interpretation of this would be much appreciated.
"If the appointment did not take place and the solicitor has not written a signed document proving that your wife's aunt had cancelled the first will, and wrote a new document proving that your wife is the beneficiary of the property after her death, your, your wife can use it as a legal document considered as a will to ask for her rights
under inheritance after death".
Your interpretation of this would be much appreciated.
When a Solicitor states that the testator called into his office, and a will was revoked by tearing it up in the presence of the testator. Is the onus on the Solicitor to prove that it did actually happen as stated. Should the solicitor be holding anthing, like documentation, signed by the client, to prove that the testator did actually attend.
Any help please.
Im beginning to clutch at straws.
Any help please.
Im beginning to clutch at straws.
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