Solicitor's Office Cannot Find Will

[Monika]

My mother died on 20 November. She left a will and entrusted its safekeeping to her solicitor.

We are now being told that they cannot find it, along with the deeds to her property. We can get a copy of the deeds fairly easily but we cannot get a copy of the will and it looks as if we will have to go to probate.

The solicitors she dealt with amalgamated with a large firm of nationwide solicitors and we have in our possession a letter which my mother received at the time saying that her will and her deeds were now at the new premises - so they will not be able to deny that they have lost them.

This is not what my mother would have wanted - far from it. In fact, she took the necessary steps to avoid such a thing.

Probate is not going to help my sister and me when after the funeral next Friday we will not be able to draw a line underneath her passing and this will drag on for months on end, not to mention that this situation is already throwing up problems from other sources at this dreadful time.

Any advice please?

[buildersmate]

Sorry to hear about your additional problem at this time.
Without a will, the process of dealing with the deceased's estate is through something called a grant of 'Letters of Administration'. This is instead of a grant of probate (which applies if executors were appointed in the will).
First things first.
Did your mum leave much in the way of an estate? - for example, is a house involved?
Are there any blood relatives living other than you and your sister?

Reasons for asking:
1) if the value of the estate is very small - less than £5000, you don't need either a grant of probate or a grant of letters of administration in any case.
2) If there is no valid will, the rules of intestacy apply. These say that the children inherit the estate equally. Unless this is going to be a bone of contention between you and your sister, or there was some reason that you knew your mum left money to other folks, it may not much much difference. If this is true, it would indeed be a lucky outcome. (This is valid for England & Wales)

Strikes me a large ex-gratia payment should be made to the estate for incompetence. Make 'em squim - a lot.

[Monika]

Thanks, Builder's Mate, for that.

We actually had preliminary talks yesterday with a representative of a law firm spelling out what we do about probate.

My chief grievance is with the Solicitors, who are now preventing us from fulfilling Mum's wishes and what sort of comeback we have. I certainly think that they should be looking high and low for Mum's will which, I am sure will be at their premises and probably lying in a dusty box somewhere

I do feel that they should endeavour to locate it and, if they don't, they should have to pick up the tab for probate expenses. Alternativel;y their Wills and Probate department should do the probate themselves at no cost whatsoever.

I plan to ring them first thing on Monday and spell out to them what I have just said above. Do you think I should threaten them with anything else? For instance, wouldn't the Law Society be on their backs for this total incompetence? Would the press be helpful too?

I will, hopefully, make them squirm because we know what Mum's wishes were and they are not going to be fulfilled because there is another one - our deceased brother, involved and some offspring from his first bitter marriage who will come out of the woodwork.

[loonytunes]

My understanding is that a will is still valid unless it is destroyed by the maker. So the fact that it is lost does not mean that it is not valid. The people who drew it up may have a computer/word processor copy, an offic ehard copy and may well have sent a copy to your mother. We used to when I wrote wills. Try this line of enquiry.

[Monika]

Mum never had a copy of her will. She was of the old school who entrusted their legal documents to their solicitors believing them to be in safe hands.

My only option is to try to get them to search thoroughly for the documents and to make sure that they are motivated enough by my 'threats' of some kind of come-back if they don't.

I don't know what else we can do!

[buildersmate]

Do you and your sister not have an idea what the will said? If it merely split the estate equally between the two daughters there is no net impact because that is what will happen under the intestacy laws in any case.
I wonder if you misunderstand what 'probate' actually is? - you would have to apply for probate with a will. It is perfectly easy to DIY and it costs about £90 and involves attending the probate office in person. The process with no will is not a lot different - refer to my first post for letters of administration which does much the same thing. That's all the expenses consist of. If you have a solicitor do it for you, it typically costs a few hundred pounds - it is isn't difficult.

If you DIY you can still make a fuss with the solicitors - and expect some compensation for their incompetence. Otherwise, as you say, what you could argue for is them to deal with the administration for free - which actually costs them nothing except a little of their time.

[Eve]

That's horrendous! Any deeds that solicitors hold such as wills (not so much property now for registered property) should be properly stored in fireproof storage. We even have to keep files for 6 years, everything has to be stored and referenced and that has been the way at every law firm I've worked at.

I would invoke their official complaints procedure, all firms should have one. Complaints are now dealt with by the Legal Complaints Service...http://www.legalcomplaints.org.uk/h
ome.page


Usually they would advise going through the firm's own complaints procedure first but as it is such a serious matter, I'd be tempted to give them a ring initially to get their advice especially as it may take some weeks to get responses back.

I'd have to say I'd be tempted to let another firm do the estate work and look after everything and see if the solicitors at fault will cover their fees for doing so.

I would want a full account as to the circumstances of the deeds going missing and the effort made to locate them.

If Barmaid is about she may be able to help with the query in more details as, although I'm a solicitor, it's not my area.

As a property lawyer though, what does spring to mind is whether the property was registered at the Land Registry as you mentioned deeds not being able to be found either. If unregistered, there may be issues with registration of the property.

I'm sure it could all be sorted out but make sure the solicitors co-operate with anything they need to do like any required statutory declarations as to the circumstances.

Let us know how you get on and my sympathies during this difficult time.

[Monika]

Thanks Builders mate and Jenna.

Will contact the Solicitors office on Monday and let you know what happens.

[fredpuli47]

If the solicitors have a copy it may be that it shows when the original was made and who witnessed it. A will is not invalidated merely because it cannot be located. Indeed, there's an extreme case where an eccentric old man made his daughter recite his will so often that she could remember what it said; he wanted her to be constantly aware of how generous he was being to her; and when he died no will could be found. The court ordered that the terms as she remembered them were binding and to be carried out.
What I'm thinking is that the witnesses, or one of them, or any person who saw the original when it was witnessed and signed, can give evidence of it. Being shown such a copy they can say that it is indeed a will which they witnessed etc. They may not remember the details of it, without seeing the copy now, but they'll be able to say that they witnessed it, as they can see, and therefore the copy would represent the original. In any case, the will's execution in due form would be presumed because the doctrine of ' omnia praesumuntur rite esse acta ' ought to apply ( that a document which is in regular form and of a type which the person would complete in the course of their duties, is correctly done) I'd have thought, even if such witnesses cannot be found or are dead.'.
It's worth exploring this possibility. The will, though not found, might then be admitted to probate.

[Monika]

Thank you to everyone who posted here.

I have really good news. After ringing the Solicitors involved on Monday, they came up trumps and found my mother's will.

I had been prepared for confrontation and it didn't turn out to be necessary. Two hours after ringing, I got the phone call to say all is well.

Phew!