Wills and probate expert, Ovid Busette explains what’s happens if a lost Will is found after probate.
In the absence of a Will setting out how an individual wishes their estate to be dealt with on their death, the rules of Intestacy apply. These rules set out the order in which the deceased’s relatives may apply for a Grant of Representation or Administration to their estate. The intestacy rules also set out the individuals who are entitled to the deceased’s persons assets. Once that person or those persons have received the Grant, they become an Administrator of the estate and have the authority to collect in the deceased’s assets and distribute them in accordance with the rules of Intestacy. But what happens if a Will is found after the Grant has been issued to the Administrator? What protection does the Administrator have if s/he has already distributed the deceased’s assets in line with the rules of Intestacy? And what rights do the beneficiaries named in the newly discovered Will have?
Steps to take BEFORE applying for the Grant
Those who may wish to apply for the Grant to a deceased’s estate, must take reasonable steps to search for the deceased’s Will. This includes searching among the deceased’s paperwork and belongings, making enquiries with relatives and close friends of the deceased, and also making enquiries with local solicitors or solicitors which the deceased may have used during their lifetime. One such way of conducting searches with solicitors is through Will registration companies such as Certainty or Estate Research. Often firms of solicitors will register the fact that an individual has made a Will with Will registration companies. The scope of these searches could be limited to solicitors’ or Will writing firms local to where the deceased lived, or can be extended nationally. The Will registration company in most cases will issue a certificate as proof of your efforts to locate a Will. Failure to make such searches can open the proposed Administrator of the estate to criticism from the court if claims are made by beneficiaries named in a Will, that later surfaces. It may also result in the Administrator being personally liable to the beneficiaries named in the newly found Will that surfaces after the Grant has been issued, if the estate has already been distributed.
By undertaking these searches the Administrator can show that they have made reasonable enquiries into the existence of a Will prior to applying for the Grant. This could be a mitigating factor in any claim against the estate, or the Administrator, should a Will be found at a later date.
Once the Grant has been issued
Once the Administrator has conducted all reasonable searches and has made reasonable enquiries regarding the existence of a Will, they may then decide to apply for the Grant. When the Grant has been issued, it is advisable for the Administrator to take out a Statutory Advertisement for possible creditors and possible beneficiaries of the deceased’s estate, not known to the Administrator. The Administrator should also delay distributing the estate for at least 6 months after the Grant has been issued. This protects the Administrator from claims made against the estate should it be distributed after the 6 month period. However, beneficiaries of a Will discovered after the Grant has been issued may still follow monies into the hands of the individuals who benefited under the Intestacy rules.
Please also note that Statutory Advertisements will only protect the Administrator against claims by beneficiaries unknown to them. If the Administrator becomes aware of valid claims against the estate, or the existence of a Will and fails to acknowledge these claimants or the Will, then the Administrator will leave themselves open to a claim against them personally.
Prior to making any distribution of the Estate, the Administrator may also wish to apply for insurance to protect themselves against possible claims on the emergence of a new Will. Such policies can be taken out to cover the value of the estate should claimants later present themselves, following the discovery of a new Will. However, Administrators should note that the policy may not cover any interest on the value of the estate due to the beneficiary and full enquiries into the extent of such cover should be investigated by the Administrator to ensure that adequate cover is provided. The cost of such cover can be met by the estate.
Rights of the beneficiaries under the Will
Once a valid Will has been discovered the beneficiaries under the Will can make a claim against the Administrator of the Estate who obtained the Grant and against any individuals who have benefited from the estate under the Intestacy rules.
Claim against the Personal Representatives
Whether a claim against the Administrator succeeds will depend on whether any of the steps mentioned above have been taken; i.e. undertaking reasonable searches for the existence of a Will, making Statutory Advertisements for unknown creditors and beneficiaries and delaying the distributions against the estate. The court does have some discretion to relieve the Administrator of liability in whole or in part, if they have been found to have “acted honestly and reasonably”in the discharge of their duty, particularly if they can evidence the efforts they have made to find a Will. However, this does not prevent a claim being brought against the individuals who have benefitted from the estate under the Intestacy rules, where a Will was previously thought not to exist.
Claim against the beneficiaries under Intestacy
Regardless of whether individuals innocently received monies from the estate believing that no Will was in existence, they would still be liable to the beneficiaries under the Will for any entitlement they received from the deceased’s estate. Crucially, the beneficiaries under the Will can also still bring a claim against those individuals who received the estate under the Intestacy rules if the funds from the estate have been spent. If the Administrator has taken out insurance against the likelihood of a claim, it may be possible for beneficiaries to settle any claim under that policy.
How do you avoid these issues?
The above begs the question, how does one avoid these issues and the expense that follows in the first place? When making a Will ensure that you inform those who you intend to appoint as Executors as to the whereabouts of your Will, once it has been signed. It is not necessary for your Executors to know what is in the Will at the time of its execution, but merely where it is held and also the name and contact details of the solicitors who have prepared your Will.
Should you wish to discuss any of the above issues please contact one of our Wills,Tax & Estate Administration experts who will be happy to assist you.
 s61 Trustee Act 1925