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Buachaill, Barrister
Category: Law
Satisfied Customers: 10984
Experience:  Barrister 17 years experience
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My mother passed away and we cannot find her original will.

Customer Question

My mother passed away and we cannot find her original will. She had a copy lodged with a solicitor and named myself and my brother as executors and her nine grandchildren as beneficiaries. She included a covering letter saying that three of her children had already had enough from her estate and thats why she was leaving it to her grandchildren. My brother, who is also an executor, was of the mistaken belief that if she died intestate, with the note lodged with the solicitor but unsigned, he would inherit the entire estate. I think he may have the original will, but cannot prove this. He is not letting anyone access my mothers house to search for the will and has changed the locks. He states that he wants the grandchildren to inherit but has made impossible restrictions on how they are allowed to communicate with him and various ultimatums. The adult children do not wish to void the will and support the grandchildrens claim. My mother had a hoarding problem and the house is chaotic, her doctor was aware of this, in fact the oxygen nurse refused to supply the house due to the fire risk She requested that I phone the solicitors and get a copy of the will whilst she was dying in hospital when my brother informed her the original could not be found. My cousin was witness to this and has no interest in the outcome and is willing to make a statement to that effect. The beneficiaries would like to have my brother removed as executor due to his mental problems and acts against their best interests
Submitted: 1 year ago.
Category: Law
Expert:  Buachaill replied 1 year ago.

1. Dear Adele, it is perfectly permissible in proving a will, to prove a copy of the will, even if the original will cannot be found. Normally, the proving of the will would be the job of the executor of the will, but given the behaviour of your older brother, you may need to also issue a Contentious Probate Summons to remove him as executor, particularly given his mental problems. However, if there is someone else named as executor they can prove the copy of the will. However, you may still need to remove your elder brother as executor if he persists in being obstructive.

Expert:  Buachaill replied 1 year ago.

2. The ability to prove a copy of the will is available to avoid situations such as the one you have outlined where there is an element of hiding the will and not being forthcoming with the deceased's affairs. Be aware that your brother has no lawful authority to prevent the other siblings from accessing the house. being executor only gives him power if he extracts a Grant of Probate. As he has not done so, he has no power to prevent other people having access to the house. So, here he is acting out of line.

Expert:  Buachaill replied 1 year ago.

3. I would advise you to get the other executor to the will - if there is one named - to prove the copy of the will and to proceed to probate. Hire a solicitor who will look after your interests and get the will proved and your brother removed as executor as soon as possible. Don't let your brother hiding the will prevent the estate getting administered.

Expert:  Buachaill replied 1 year ago.

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