‘I thought someone had died intestate, but now we have found a will – what can I do?’

It can be difficult to find someone’s will after they have died – particularly where they have left their things in a mess, or not told anyone whether they have a will or not and there is no obvious place to look.  We do not have a system for compulsory registration of wills.  What happens then, if someone takes out a Grant on the basis that the deceased died intestate, but a will is later found? It might substantially change the way in which the estate should be distributed.

The first thing for the executors to do is to check, as far as possible, that the will is valid.  There might be clues on it about solicitors used by the deceased (who might still have a file).  There will probably be a date, so close friends and relatives can be asked whether or not the deceased was likely to have had capacity at the time.

If someone other than the executors are acting as personal representatives for the estate, then they need to be informed quickly that there is a potential will so that they do not distribute the estate (if they have not done it already in which case, the beneficiaries might need to be contacted).  Assuming the will is valid, they will need to revoke their Grant so that the executors can obtain a Grant of Probate and administer the estate according to the will.

This situation arose in the case of Morris v Browne (2017) where the Defendants had obtained a Grant of Letters of Administration on the basis of their statement that the deceased had died intestate.  In that case, the Judge found that in fact the Defendants were aware at the time of taking the Grant, that there was a strong chance that there was actually a will (based on a contemporaneous letter from one of them and an allegation that one had seen the will at the deceased’s funeral).  The Court was troubled that the Defendants had been willing to swear that the Deceased died intestate in the circumstances, and (wisely) the Defendants did not oppose the application for their Grant to be revoked.

The Court also made an application for an account and for the Defendants to pay the Claimant’s costs on the indemnity basis.  This was because there appears to have been maladministration of the estate – the Claimant was the primary beneficiary under the will but was also a beneficiary under the intestacy.  The Deceased’s house had been sold for £920,000 but the Claimant had received nothing, and there was no explanation as to why not.  The Judge ordered that the Defendants give a full account of what had happened to the proceeds of the estate, and that they pay all of the Claimant’s costs.

The full text of the judgment is not yet available, so it is not clear why the Claimant had not taken steps sooner to admit the will to probate (especially if the will was available at the time of the Deceased’s funeral which was in 2012), but that does not excuse the conduct of the Defendants.  If a will is found, it is important to act quickly to inform the PRs so that distribution does not take place give that the wishes of the deceased as set out in their will might be very different to the provisions under the intestacy rules.  For anyone taking out a Grant where there is an intestacy, it is important to check as thoroughly as possible that there is no will.  The oath for administrators requires PRs to swear that the person died intestate, and the responsibility of signing that should not be taken lightly.

For advice on any aspect of a dispute over an estate, please do not hesitate to contact our contentious probate team.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*