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Clare, Solicitor
Category: Law
Satisfied Customers: 34895
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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Last year my Father changed his will to make me his sole

Customer Question

Last year my Father changed his will to make me his sole beneficiary, my sister no longer being in need of anything, her future secure. My sister is his executor. He wrote a hand written codicil to his will of he kept a copy and my sister had a copy.
He passed away in February 2017 (this year). I have just received a copy of the will from the Wills and Probate service, after hearing nothing from my sister.
Probate was granted on 26th June 2017.
It appears that my sister has failed to present the hand written codicil to the solicitor and the will does not reflect the change my father made last year.
He was house bound and bedridden and told me that my sister would see to the codicil being transcribed to ensure validity.
My niece told me some months before Father died that there was something that I should speak to my sister about, and that our relationship would collapse when Father died. She would say nothing more and I did not persue it.
I believe my niece knew that my sister had not carried out Fathers wishes.
After Father died, 6 weeks had passed and my sister had still not begun the process of executing Fathers will.
My niece said that her mothers behaviour since Fathers passing, had become peculiar.
I emailed my sister to ask if she was fully engaged with the task of executing Fathers will and she sent a string of very odd emails back to me which would indicate that she was definitely not on track with it all. She was very angry that I should question her.
I made inquiries and was advised that i could apply for an Executor Removal Permit if I felt that all was not going to plan. I relayed this to my niece who, to my horror told my sister, who then pulled the shutters down, apart from one last email to say that I should never contact her again for any reason.
My niece then emailed me to say that the hand written codicil had just been handed to the solicitor for verification and validity, this was now 9 weeks after Fathers passing.
So I feel that she intended to withhold and only because I challenged her did she reveal it to the solicitor.
I have no way of knowing if this is true or not, that she actually revealed this hand written codicil to the solicitor, and whether it was declared invalid.
I would like to find this out but cannot enter into any litigation which my sister could retaliate against, she is a very wealthy woman in her own right. The widow of a Jewish Stockbrocker/ Partner in a Fleet Street Accountancy Company.
I have no other family to help mediate and so thought I would ask for your advice.
Kind Regards
Submitted: 8 months ago.
Category: Law
Expert:  Clare replied 8 months ago.

Thank you for your question

My name is Clare

I shall do my best to help you but I need some further information first

Was the Codicil signed and witnessed?

Customer: replied 8 months ago.
My sister said that it was. I didn't ask to see either her or my father's copy. They both told me separately that it had been done, and I trusted them. My father told me at his bedside that his copy was in his bedside cupboard drawer, and tapped the drawer as he told me. And my sister told me when I went to visit her in St Albans last year that the codicil had been done and she had a copy in her file.
Expert:  Clare replied 8 months ago.

Did your father ever say he had actually signed it?

What does the old Will actually say?

Customer: replied 8 months ago.
The old will which I have a copy of says that my fathers half of the house is left to my sister and myself, in effect one quarter each. The other half of the house is left to his wife, my step mother, and all of the residual cash is left to my step ma aswell.
My Fathers exact words were, when I asked him if it had been sorted out quote"It's in there all signed and sorted" and said this as he tapped his bedside drawer. It was 2 weeks later when my sister told me that she had a copy of the document in her file.
Customer: replied 8 months ago.
After he passed away I told my step Ma that Father had made this codicil, and she said that he did tell her about it, and that Joanna, my sister had agreed to the arrangement. And she added that at the time of his telling her this, that they both said, at least Joanna has done something good at long last.
Expert:  Clare replied 8 months ago.

How much is the property worth?

Customer: replied 8 months ago.
Please can you tell me why the value of the house is relevant? My question is firstly, how can I find out if the handwritten codicil was submitted for consideration? And if so why was it rejected? And if it was not presented to the solicitor, what recourse do I have against my sister for failing to carry out my father's wishes? Also why was I not given notice during the process of probate to contest the will? Can I still apply for the executor removal permit through the magistrate now probate has been granted?
Expert:  Clare replied 8 months ago.

It is relevant to the potential costs of any action that you may decide to take based on the potential options available to you.

Your problem is that no one has seen the actual codicil signed by your father and two witnesses - and without that then none of the circumstances you describe above will be binding on the Executor.

You can ask whether or not a Codicil was filed and rejected - but from what you have said it is unlikely.

It was for you to file a Caveat of you wished to prevent Probate from being granted without your knowledge - there is no process which means that you have to be notified unless the Caveat is in place,

Your starting point is to write to the solicitors involved (their name should be on the Grant of Probate ) and ask about the Codicil.

I would also suggest that you get a statement form your step mother confirming what she knew about the matter.

If it is clear that there was a valid codicil which has not be forwarded to the Court then that is Fraud and you can report the matter to the police AND apply to the High Court (not the magistrates court) to have her replaced as Executor.

I hope that this is of assistance - please ask if you need further details

Customer: replied 8 months ago.
I see what you mean about the value will not be enough to risk losing in legal fees. My sister would love me to go down that path I am sure, she has spent her life pushing my face in the mud!!! I grew up in Central Africa, sent there after my Mother died when I was 15, and we have been estranged for 40 years. Our reconciliation came about due to my Fathers dwindling health.
My youngest son died 13 years ago and I had to sell my cottage to pay off huge debts which had accrued throughout his 10 year illness. With the money remaining I bought a woodland in which I have been welcoming people and families with children who have complex emotional and educational needs. It has been a success though does not yield financial rewards, and my Father was proud and supportive of my project, which is why he saw the good sense in re directing his assets so that I could put a roof over my head again. I have been "sofa surfing" for 13 years, and he knew how tired I am. My two older surviving sons lost their home too, and have been skating around in life for years although now thankfully finding some gravitas. My sister has a set of well observed character traits and this will surprise no one.
I will take your advice and write to the solicitor. I would be very grateful if you could give me the gist of an opening frame of do I open the discussion?
I fear being seen as malicious, and grasping....I would rather perhaps take it no further and leave the matter to rest if it were seen to be anything other than a need for my sister to be honest, and carrying out my Fathers wishes as his executor.
Customer: replied 8 months ago.
I have just tried to call the solicitor and the phone number is ***** I wanted to verify their postal address before sending a letter, there is no email address indicated. The will is dated 2008. perhaps they have moved or merged with another office?
How can I find out where they are.
The firm is called Tracey, Barlow and Furniss. 9, New Street, Retford, DN22 6EG
Customer: replied 8 months ago.
I just called another solicitor in Retford to see if I could find out where they are and she told me that they firm Tracey. Barlow and Furniss went out of business some years ago. What now???
Customer: replied 8 months ago.
Hello. What usually happens in these circumstances? When the solicitor who has issued the will is no longer in Business and cannot be traced?
Customer: replied 8 months ago.
What usually happens in these circumstances? When the solicitor who has issued the will is no longer in business and cannot be traced? Is it possible that the probate office can grant probate on an obsolete will if a current will has not been submitted?
A current will may have been held domestically, after the solicitor closed down and this will was not presented for probate, only leaving the old will in place. Is this possible?
Expert:  Clare replied 8 months ago.

I am so sorry for your loss - time doe snot heal but it makes it less raw - and you are clearly turning to help others.

You should contact the local Law Society who should know who took over the files for that firm

Another possibility is to look at the Grant of Probate and see if there is a Solicitor listed as having applied for the Grant

Once you have traced who has the file write to them using these words

"I am writing to enquire about the estate of the above named.

I was told in xxxx that there had been a Codicil prepared - but it does not appear to have been included in the Grant of Probate.

Could you please clarify the position"

Customer: replied 8 months ago.
While awaiting your answer I have been trawling around for information and traced the solicitor who took over the files.
The solicitor said that the codocil was produced. This occurred because my sister got news of the fact that I intended to apply for a Executor Removal Permit. Apparently the codocil is invalid. My Father had entrusted her with the task of having this document transcribed to be made part of his will. She did not do this. Knowing that his time was short, all she had to do was wait. For the last few weeks of his life she avoided the house, and during his dying days in hospital she visited for one hour only, while my step sisters and I tended him around the clock and supported our Ma (my step mother) who sat at his side like a small bird until his last breath. My sister has a stock portfolio of many millions, and an income of £72,000 a year, plus property. She is the widow of a Jewish Stock Broker and Chartered Accountant Partnered in a Fleet Street Company. She knows that I cannot afford to litigate against her. Father knew that what little he had to leave would put me back on my feet and put a roof over my head. She has a huge problem dealing with my Fathers support of and pride in my project. Perhaps this is a way for her to glean some satisfaction from the power she holds as executor, enabling her to push me down just one last irretrievable time. I forged ahead with the project knowing that if I sank everything into it I would get back on my feet after Fathers assurance that his bequest would be available to me after all. He made a big mistake in trusting her to do her duty by loyalty and the law. And I made a mistake in trusting her too. What are my options now we know that she failed to have the will transcribed as she was instructed? Is this in any way a fraudulent act? I'm sorry to keep you and I promise not to trouble you for much longer, but I need to gain a balanced sense of what can be done to call her to account. Even if I do not succeed in acquiring the inheritance that my Father intended, I just need her to know and feel that what she has done is deceitful and wrong.
Customer: replied 8 months ago.
I'm just waiting for you to respond to my last messages. Sent on 13th July.
Customer: replied 8 months ago.
Still awaiting a response to my question of 13th July.
Expert:  Clare replied 7 months ago.

My apologies - this did not turn up on my list until today.

For clarity dd your father have mental capacity until the end?

Customer: replied 7 months ago.
he was fully compus mentis until he slipped into a morphine induced sleep 3or 4 days before he died in hospital. I saw him a week before at his house, I read to him, an extract from a Bill Bryson book...he was laughing. I went back to Norfolk, and as I left he asked me to come back soon and also asked if I needed any money for fuel. He gave me £100 a month pocket money because he knew I struggled to make ends meet. This was 10 days before he went into hospital for the last time.
Customer: replied 7 months ago.
I went back to help my step Ma and my step sister nurse him in hospital, and stayed with him until he passed away. We took it in shifts to care for him, my Ma never left his side. We had to support her too. My own sister never even came there. Only for one hour from London the day he was taken into hospital, then left because she had to get back to London to relieve her dog sitter.
Expert:  Clare replied 7 months ago.

So he would have been aware that he had not signed the Codicil?

Customer: replied 7 months ago.
He did sign it. The solicitor said that it was not valid quote "the hand written note is not valid as it had not been witnessed under section 9 of the 1837 Wills Act". My sister was entrusted to do what was necessary to make it so. My father was not a legal expert, he would have trusted her to carry out his wish, to ensure the hand written note he made was valid. I did not know who the solicitor was, and I was not informed to enable me to place a caveat on the will. I had been advised to do this but my sister told me never to contact her again for any reason, when I pointed out that I should be kept informed. I was not informed that probate had been granted, I found this out myself by doing a Wills and Probate search. Should the solicitor have told me that I was a beneficiary? Should I have been told that probate was in the pipeline so that I would have a chance to contest it before probate was granted?
Expert:  Clare replied 7 months ago.

That note could never have been made valid - only a document signed in the presence of two witnesses would be legally binding.

Is there any reason hy your father would NOT have known this?

Customer: replied 7 months ago.
Is there any reason why he would not have known this? I think that like any ordinary person, he would assume that a signed letter written in his own hand would be proof of something. He relied on my sister to ascertain that it was sufficient. She said it was, therefore I believe he assumed that she had checked. Should the solicitor have informed me of pending probate so that I would have an opportunity to contest the will? Should my sister have given her my contact details? I asked the solicitor this. He said that he could not answer my questions because he quote "is working for the executor".
Customer: replied 7 months ago.
From what I have read about the process, it appears that the usual course of events has not been followed. The solicitor has not acted according to lawful procedure.
Customer: replied 7 months ago.
Hello...has my question reached you? The solicitor should have been in contact with me. Is this correct? I was not given an opportunity to place a caveat on the will to prevent probate being granted before this could have been queried. If I had known that my sister had not carried out my fathers request that she should do what was necessary to ensure that his change of will were legal as he expected her to do, then I would have applied for an executor removal permit, which may have been granted due to the contentious circumstances. Then perhaps it could have been decided in court? My sister has engineered a situation which has placed her in control, and has failed to carry out her duties as executor. Is this correct? She only presented the hand written note to the solicitor long after my Father had died, and only when I questioned whether or not she had carried out his wishes. She had no intention of making sure that the hand written was was validated by due process but had led my Father to believe that it was. He would not have betrayed me. By her actions after his death, it is clear that she had planned this. If you knew her, you would understand my utter feeling helplessness. It is typical of her character to behave in this way.