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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10585
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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I am the executor of a draft will that has been proved,

Customer Question

Hi, I am the executor of a draft will that has been proved, the original will was not found as the solicitors went in to administration and I was unable to find it.
I and a friend of the deceased are witness and executor and beneficary to this draft will, are we able to benefit or is our share of the will void ? could we contest if we cant benefit on the basis that this situation should not have arisen in the first place through mis advice from the originla firm of solicitors involved.
Thank you
Graham
Submitted: 2 years ago.
Category: Law
Expert:  Aston Lawyer replied 2 years ago.

Hello and thanks for using Just Answer.

My name is ***** ***** am happy to assist you with your enquiry.

Could you just confirm that you and the other party were the 2 witnesses to the Will?

Where was the Will executed? (the Solicitor would normally attend to the execution of a Will or if the Will was sent to the testator to execute, full instructions would normally have been given by the Solicitor, to include who can and can not act as witnesses).

I look forward to hearing from you.

Kind Regards

Al

Customer: replied 2 years ago.

Hi Al,

Myself and a close family friend of the deceased both signed the draft will along with the deceased, there was no solicitor present as it was a draft signed at the deceased property, the deceased did not attend the solicitors offices to execute a full and proper will, which is why I have to use the draft copy.and also why we (and the deceased) were not aware that witness could not benefit.

I do however have a signed letter from the next of kin (sister 79 years old, no other family / next of kin) who has agreed that the draft will is what her sister wanted and that she has no reservations or concerns that the estate is not being distributed or handled in the way her sister would have wanted, this letter is with the probate documentation.

Thanks

Graham

Expert:  Aston Lawyer replied 2 years ago.

Hi,

Thanks for your reply.

It would be normal for us Solicitors to send the client a draft Will so the client can check it meets with his requirements and all names of beneficiaries are correct. Upon the client confirming he was happy with the draft, an original Will would be prepared and the Solicitor would then either attend the client to get the Will executed or send the original Will to the client with instructions as to how it should be executed/witnessed.

I am not sure why this never happened, but if the Testator took it upon himself to use the draft Will as an original Will, his Solicitor can not be held responsible if the draft Will was not executed correctly.

However, not all is lost. Provided the next of kin is happy to honour your legacies and administer the Estate in accordance with the draft Will, a Deed of Variation can be prepared and signed by her stating that she would like you and the other witness to benefit from the Will. Accordingly, the Estate can then be administered and distributed in accordance with the terms of the draft Will. The next of kin should instruct a local Solicitor to prepare the necessary Deed of Variation.

I hope this assists and sets out the legal position.

Kind Regards

Al

Customer: replied 2 years ago.

Hi Al,

Thank you, ***** ***** able, as executor allowed to arrange a deed of variation on behalf of the NoK ? obviously she will need to sign it but can I contact a suitable solicitor or must the NoK be independant in carrying out this process

Thank You

Graham

Expert:  Aston Lawyer replied 2 years ago.

Hi Graham,

There is no reason why you can't do the paperwork, as Executor. The next of kin should, however, be advised to seek independent legal advice before signing the Deed.

Hope this helps.

Kind Regards

Al

Customer: replied 2 years ago.

Thank you very much for your help, feedback will reflect your asistance Smile

One last thing, am i allowed as executor to "claim" reasonable expenses incurred in my role ? this has been a long drawn out process and I have put a lot of "leg work" in to getting to where we are now.

Thank you

Graham

Expert:  Aston Lawyer replied 2 years ago.

Hi,

Thanks.

I'm afraid that as a lay Executor, all you can reclaim are any expenses you have incurred (ie travel/postage etc),and not for any time you have spent in man hours.

Sorry!

All the best.

Al

Aston Lawyer and other Law Specialists are ready to help you
Customer: replied 2 years ago.

ForCustomer

As the next of kin is not a beneficiary and would only receive a gift (a sum of money)not a % from the estate, can she still raise a variance to the will ? or does any monies from the estate go to the remaining beneficiaries ? who have indicated that they will not be raising a variance.

Thank you

Graham

Expert:  Aston Lawyer replied 2 years ago.

Hi Graham,

All the beneficiaries of the Estate have to agree to vary the terms of the Will, if a percentage or indeed a set sum is to be paid to a third party/next of kin.

You will therefor eneed to obtain all the beneficiaries consent.

Kind Regards

Al

Customer: replied 2 years ago.

So the NoK Has no say as she is not a beneficiary ?

also there are 3 beneficiaries (my ex wife being one of them) two say no to a variance and one says yes, any point in challenging ?

Expert:  Aston Lawyer replied 2 years ago.

Hi,

You are correct- if not all the beneficiaries are in agreement the next of kin can not demand any variance at all.

Kind Regards

Al