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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11554
Experience:  30 years as a practising solicitor.
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My father died in 2012. He had previously given me a copy

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My father died in 2012. He had previously given me a copy of his will which was made with his solicitor in 2002, and it stated that I was the executor and that myself and my two siblings would benefit in various ways. It also stated that if I do not survive him then my sister would be executor. However, on his death my brother said that a new will had since been made and that he was the executor. Despite several requests he has not provided a copy of this new will. Although a solicitor was used to settle the estate it is not the one my father had used. Before my father's death my brother had also been granted power of attorney owing to my father's lack of mental capacity. I only discovered this when the nursing home pleaded with me to take action on several matters which he had been ignoring. I need a copy of this will because it concerns my interest in part of a heritable property on which he held second security. In the first will, the property had been left to me and therefore I need the second security to be cleared. I have no idea whether this second will was created before or after my brother became power of attorney. I have no knowledge of the date of the second will or the date when he became power of attorney. However, to date neither myself nor my sister have seen the will nor received any inheritance whatsoever.
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question. I am a Scots solicitor and will help you with this.
If your brother has refused to give you a copy of the new will then you can go to the court for a copy, assuming that the solicitor, who you say has "settled" the estate, applied for Confirmation at the court. I take it that when you say "settle" the estate, you mean apply for Confirmation and wind the estate up.
Unless the estate is cash only with a balance of less than about £15000, where there is a will the executor has to make up an estate inventory C1 and lodge this with the will in court. The court then issues Confirmation enabling the estate to be wound up. Co formation is the Scottish equivalent of what they call Probate in other jurisdictions.
At that stage the will and Confirmation become public documents and you can ask the court to let you see these.
It will then be for you to assess what to do next.
I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 2 years ago.

A substantial part of the advice is irrelevant. My question made it clear that property was involved therefore advice regarding a cash only estate is irrelevant.

Also, although a solicitor was used to settle the estate I have no knowledge as to whether the estate has actually been settled.

Expert:  JGM replied 2 years ago.
Sorry I was making the point that it is likely that Confirmation would have been applied for and that only small cash estates do not normally require Confirmation. The remark was made in passing and for illustration. It was not a "substantial" part of the advice not was it irrelevant.
And as regards ***** ***** "being" settled or otherwise, that is why you have to go to see the commissary clerk at the court, ie, to find out. Alternatively instruct your own solicitor to make investigations for you if you feel you can't do it yourself.
I'm sorry you didn't understand that. I hope you do now.
Another point that occurs to me is that you are entitled at the very least to claim legal rights in the estate, as is your sister so you are entitled to make that claim to the solicitor concerned. The estate should not have been completed without that having been dealt with. A will cannot exclude a child's legal rights to claim a portion of moveable estate under Scots law.
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