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Buachaill, Barrister
Category: Law
Satisfied Customers: 10944
Experience:  Barrister 17 years experience
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Our best friend died suddenly on Saturday. She asked us to

Customer Question

Our best friend died suddenly on Saturday. She asked us to be her executors of her will. Her son tragically hung himself last night and we found him this morning. By mid afternoon her brother arrived, as she told us he would, and went immediately to a solicitor. He tells us that as her surviving adult relative he has been advised that as her son only survived her by 36 hours he is entitled to the property and not the sons surviving two children. We cannot gain access to the property, as he has been given the properties keys by the police, and we cannot therefore look for the will written by his mother which we believe to be inside. We need advise desperately. Many thanks.
Submitted: 4 years ago.
Category: Law
Expert:  Buachaill replied 4 years ago.
1. At the outset, as executors of the deceased mother's will, you have the right to take possession of her property and to safeguard it. However, in order to assert your right and authority as executors, you need to produce a copy of the will. Accordingly, you should go to the solicitor who prepared the will and obtain a copy of it. This then can be used to assert your right and autority as executor to take possession of all assets of the estate of the mother. It is now up to you to go to court to prevent the brother taking control of everything and dissipating the estate. If it is the case that the will was prepared without the help of a solicitor then you need to go to court with the assistance of a solicitor and get the assets of the estate preserved pending the finding of a copy of the will and the administration of the estate.
2. Be aware that the brother's claim in law is absolutely non-existent as in law, once it can be shown that someone survives a deceased, then they or their offspring inherit the assets given by the will. Be aware further, that even if both mother and son died simultaneously, it has been the law since 1922 that there is a presumption that the younger person (son) survived the elder person (mother). So the brother of the mother has no claim in law to anything whether by will or under intestacy. Accordingly, you should go to court immediately to oust his possession of the house and assets before he dissipates everything and destroys any copies of the will in her papers.
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Customer: replied 4 years ago.

Thank you for your response. Could you clarify further the following: Our friend Dianne died on Saturday , the son Robert died on Monday [ today]. Dianne's brother says that he has taken legal advice this afternoon and that as Robert did not survive her by 28 days he is the sole beneficiary and not Roberts surviving two children. We cannot, at this moment, find the will or indeed the name of the Solicitor who drew it up as the Brother has been given the property keys and has already started removing the items within the house and he will not let anyone into the house to search for the will. Is this 28 day survival time schedule correct in law?

Customer: replied 4 years ago.
Relist: Other.
believe the barrister may be offline.
Customer: replied 4 years ago.
Relist: Other.
believe the barrister may be offline.
Expert:  Clare replied 4 years ago.
My colleague has guided your correctly.
Because the som left children those children will inherit their fathers share of the estate UNLESS the Will states something different.
In any event there is no basis on which ANYONE can deal with the estate until Probate is obtained - so what the brother is doing shoudl be reported as theft
Customer: replied 4 years ago.

Hi thanks again for your response. Its simply that we need to know definitively if the 28 day ruling is correct as the son died 2 days after the Mother and the brother maintains as the Mother's surviving closest adult relative he inherits in the event of the will not being found or disappearing!!

Expert:  Buachaill replied 4 years ago.
3. The definitive answer is law is that there is no basis for the brother coming in and asserting rights contrary to those in the will or in law, which provides that those named in the will obtain their interests.. In order that the brother be allowed to do this, the will would have to provide that no one was to benefit from a gift in the will unless the survived the deceased mother by 28 days. As no one has a copy of the will, it is impossible for this to be the case. Unless the brother produces a copy of the will which states this to be the case. Accordingly, the brother has no case in law. But you still need to get a copy of the will to disprove his assertion. In the meantime, you should go to court and oust the brother so that you can get a copy of the will and the issue be settled.
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