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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25951
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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If a beneficiary inadvertantly has signed a will and mistake

Resolved Question:

If a beneficiary inadvertantly has signed a will and mistake not discovered until after testator has died
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. May I ask what kind of mistake was made please?Was the will signed in the presence of two witnesses who also signed?
Customer: replied 2 years ago.

Yes the will was made in the presence of two witnesses who also signed but one of the witnesses was also a beneficiary

Expert:  Joshua replied 2 years ago.
Thank you. Is that also the mistake that was made - the witness being a beneficiary?
Customer: replied 2 years ago.

Yes. The executor/solicitor has just discovered that

Expert:  Joshua replied 2 years ago.
Thank you. Finally was the will made by a solicitor and if so was it signed in front of the solicitor or sent back to the solicitor for safe keeping?What is the attitude of the other beneficiaires to the will? Are they willing to ensure the witnessing beneficiary receives what the will provides for or will they not cooperate in this way?
Customer: replied 2 years ago.

Yes the will was signed in the presence of a solicitor and also by the solicitor.

The other beneficiaries would not have any problem with the original distribution

Expert:  Joshua replied 2 years ago.
Thank you. if the other beneficiaries are more than willing to honour the terms of the original will (i.e. ignore the mistake) tthen there is unlikely to be a major issue here but the starting point is that as you will be aware, the Wills Act prevents a beneficiary who also witnesses the wheel from inheriting and any gift left in the world to the beneficiary is void. Therefore, starting point is that the beneficiary has a very major problem. Based upon what you say, the solicitor in question would appear to be negligent and that beneficiary may have a claim against a solicitor for his loss as a disappointed beneficiary. However, as the other beneficiaries in the will from what you say are willing to cooperate, the matter should be relatively easily resolved by the preparation of the deed of variation to the will. A deed of variation will vary the terms of the will so as to include a new, valid gift to the beneficiary who witnessed the will which will take effect as if it had been included in the will when a mistake had been made with regards ***** ***** witnessing. Ideally, the deed of variation would be signed within two years of the anniversary of the date of death of the testator in order to ensure that the deed of variation is treated as being included in the original well which can be important for tax purposes. In the circumstances, the negligence solicitor may be asked to prepare a deed of variation without charge because had he spotted the problem is he should have done, no deed of variation would be necessary and therefore there would be no additional cost though the cost of preparing a deed of variation should not be particularly high (mid hundreds). Once the deed of variation is executed by the beneficiaries and executors, the original witness beneficiary will have his chair resurrected and administration can proceed in the usual way. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
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Customer: replied 2 years ago.

Further to the above if I could add some more detail for further advice please.

This will involved an unmarried brother with 3 living siblings and 1 dead sibling.

one of the living siblings signed the will in the presence of the solicitor.

This living sibling is now a beneficiary. The other 2 living siblings are willing to cooperate with the original distribution of the will. ie divided equally between the 3 living siblings.

Question; would the family of the dead sibling have a legal right to a share of the will.

Is the will invalid/illegal?

Should the family of the dead sibling be advised of this situation? Is there a legal requirement here?

Thanks

Expert:  Joshua replied 2 years ago.
The predeceased siblings familiy have no right to entitled if the will does not provide for the predeceased sibling. If the will does provide for predeceased sibling and he has since passed away after the will was made, then his children will take their father entitlement provided for under the will unless this is pecifically excluded.
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