Solicitor has Lost Will

MostCuriousCat

I would really appreciate some advice - my dad died a little while ago and his solicitor has lost his will but I need to extract probate. This should have been straightforward - I was named executor in the will, my mother is deceased and my father's estate is to be split 50/50 between me and my sister. I had planned to make a personal application and save on solicitors fees, to be honest I can't really afford them. I have a background in finance and shouldn't have a problem completing the necessary forms. We aren't liable for CAT because the value of my father's estate falls below the Group A threshold.

Only problem is my father's solicitors have lost his will or, as they put it, they "can't locate it". My father's original solicitor closed down a few years ago and his account was passed on to this other firm. When I contacted them after my father died, they told me that they did not hold a copy of the original will. Specifically, they informed me that the original will was removed from my father's old solicitor's office but that it was not transferred to their office. They said they checked with another local solicitor to see if it had been transferred to them but they do not have it either, essentially the original will has been lost. Unfortunately I informed them I would be applying for probate myself before I knew they had lost the will and anytime I rang to speak to them after that, they were never available to talk and my calls were never returned, and they eventually informed me of what had happened by letter.

I wrote to the probate office for advice and have been told that I have to use a solicitor to extract probate because there was a will but it has been lost. This is incredibly frustrating because I am now going to have to pay to do this when I should have been able to do this myself at very little expense. And ultimately the outcome will be the same, if my father's will was adhered to his estate would be divided equally between me and my sister, or if he is declared to have died intestate then his estate will be split equally between me and my sister anyway, as per the law of succession. Same outcome except my sister and I end up being out of pocket a few thousand euros due to the incompetence of the solicitor who lost the will.

I'm tempted to just apply for a grant of application and say there is no will but obviously this could cause problems. I wrote to the Law Society looking for advice as surely it is incredibly bad practice for a solicitor's firm to lose such a valuable document, shouldn't the solicitors be liable for any costs I incur as a result of this?

Would appreciate any help or advice.

Peregrinus

First question is, do you know that your father's old solicitors kept the will? Solicitor are often a bit reluctant to do this; if you make a will with them they want you to take the will away and look after it yourself.

You state that it has been established that "the original will was removed from my father's old solicitor's office but that it was not transferred to their office". This is a bit ambiguous; it could mean that the will was removed from the old solicitor's office at the time the new solicitor took over the practice, or that it had been removed (e.g. by your father) some time before that.

If the old solicitor did undertake to provide custody of the will, and if he lost it, then of course you do have a remedy. But it's a remedy against the old solicitor; as the new solicitors never had the will, they can't be blamed for not taking proper care of it, unless you have some evidence that they did in fact have custody of the will, however briefly, and they lost it. But nothing in your OP suggests that you have that evidence.

MostCuriousCat

Hi and thanks for replying.

To clarify, my dad's original solicitor did keep the will, yes.

The new solicitor did not take over the original solicitor's practice. When the original solicitor died their clients were appointed to already established solicitors within the local area. My dad died shortly after discovering this and had only dealt with the new solicitor once about a different matter.

I can't remember the exact wording but basically the new solicitor informed me that there was a record made saying that my dad's will had been removed from the old solicitor's office (presumably when it was being transferred to the new solicitor) but there is no record of the new solicitor receiving the will, so basically it 'disappeared' somewhere in transit.

To be honest I didn't think I would have any recourse but very frustrating and unfair to be in this situation when it should have been simple and straightforward. My dad left debts behind him and we had hoped to use the money we would inherit to clear these but instead we are going to have use the money to pay a solicitor, which leaves us with nothing.

Mellor

MostCuriousCat wrote: »

If my father's will was adhered to his estate would be divided equally between me and my sister

You don't actually know that. More important, the other parties who have to administer the estate don't know that.

MostCuriousCat wrote: »

... there was a record made saying that my dad's will had been removed from the old solicitor's office (presumably when it was being transferred to the new solicitor)

What Peregrinus was alluding to is that you don't know that either. You are making an assumption that's what happened.
How do you know that your father didn't remove it?

MostCuriousCat

Mellor wrote: »

You don't actually know that. More important, the other parties who have to administer the estate don't know that.

I do know this, I have a printed copy of my dads will. His new solicitor provided me with a computer printout of his will, not a copy of the original signed will though, and it states his estate is to be divided equally between me and my sister.

Mellor wrote: »

What Peregrinus was alluding to is that you don't know that either. You are making an assumption that's what happened.
How do you know that your father didn't remove it?

I know because my dad told me his will was with the solicitor. I was his full time carer up until his death so also know exactly what he did on a day to day basis.

Mellor

MostCuriousCat wrote: »

I do know this, I have a printed copy of my dads will. His new solicitor provided me with a computer printout of his will, not a copy of the original signed will though, and it states his estate is to be divided equally between me and my sister

That's a copy of an unsigned will. How do you know he didn't change it after that. Or that he didn't change it before he signed it.
Or to be specific, how can you prove it legally that he didn't change it.

I know because my dad told me his will was with the solicitor. I was his full time carer up until his death so also know exactly what he did on a day to day basis.

But it wasn't with his solicitor. That's the point. You are making assumptions, and these many well be correct, you you lack the legal proof to back up these assumptions. Therefore you have to proceed on the basis of what you actually can prove.

Peregrinus

Mellor wrote: »

That's a copy of an unsigned will. How do you know he didn't change it after that. Or that he didn't change it before he signed it.
Or to be specific, how can you prove it legally that he didn't change it.

You can't. But that's the kind of thing that gets explored in an application for a grant where there's a lost will. It may (hopefully) be possible to give evidence, e.g. that this is the latest draft of the will that was on the file kept by the old solicitor, Mr X; that it was produced shortly before the lost will is known to have been executed; that it reflects the instructions the deceased gave to Mr X when he first came in, as noted on the file, and there is no indication on the file that he ever subsequently gave different instructions, etc. etc. And the OP can give evidence that his father told him, shortly before he died, that he had executed a will which was in the custody of Mr X, which strongly points to his not have subsequently executed a different will with a different solicitor.

Yes, it's possible that after this draft will was produced the deceased gave new instructions, and a different will was drafted and executed, and somehow there is no hint of any of this on the file. But it's not very likely and if, after a thorough search, all the available evidence points to this being a draft of the will that was most likely executed, a grant of administration can be issued on that basis.

boetstark

MostCuriousCat wrote: »

I would really appreciate some advice - my dad died a little while ago and his solicitor has lost his will but I need to extract probate. This should have been straightforward - I was named executor in the will, my mother is deceased and my father's estate is to be split 50/50 between me and my sister. I had planned to make a personal application and save on solicitors fees, to be honest I can't really afford them. I have a background in finance and shouldn't have a problem completing the necessary forms. We aren't liable for CAT because the value of my father's estate falls below the Group A threshold.

Only problem is my father's solicitors have lost his will or, as they put it, they "can't locate it". My father's original solicitor closed down a few years ago and his account was passed on to this other firm. When I contacted them after my father died, they told me that they did not hold a copy of the original will. Specifically, they informed me that the original will was removed from my father's old solicitor's office but that it was not transferred to their office. They said they checked with another local solicitor to see if it had been transferred to them but they do not have it either, essentially the original will has been lost. Unfortunately I informed them I would be applying for probate myself before I knew they had lost the will and anytime I rang to speak to them after that, they were never available to talk and my calls were never returned, and they eventually informed me of what had happened by letter.

I wrote to the probate office for advice and have been told that I have to use a solicitor to extract probate because there was a will but it has been lost. This is incredibly frustrating because I am now going to have to pay to do this when I should have been able to do this myself at very little expense. And ultimately the outcome will be the same, if my father's will was adhered to his estate would be divided equally between me and my sister, or if he is declared to have died intestate then his estate will be split equally between me and my sister anyway, as per the law of succession. Same outcome except my sister and I end up being out of pocket a few thousand euros due to the incompetence of the solicitor who lost the will.

I'm tempted to just apply for a grant of application and say there is no will but obviously this could cause problems. I wrote to the Law Society looking for advice as surely it is incredibly bad practice for a solicitor's firm to lose such a valuable document, shouldn't the solicitors be liable for any costs I incur as a result of this?

Would appreciate any help or advice.

Condolences on your bereavement.
A bit of experience in this matter. Firstly probate office up to last week are not accepting personal applications.
Normally in the case of a lost will you need to apply to the high Court to validate a non original copy, unfortunately the copy you have is unsigned. Why would a solicitor scan an unsigned copy onto their system.
This is probably going to cost a few hundred euro but is quickest option.

Mellor

Peregrinus wrote: »

You can't. But that's the kind of thing that gets explored in an application for a grant where there's a lost will. It may (hopefully) be possible to give evidence, e.g. that this is the latest draft of the will that was on the file kept by the old solicitor, Mr X; that it was produced shortly before the lost will is known to have been executed; that it reflects the instructions the deceased gave to Mr X when he first came in, as noted on the file, and there is no indication on the file that he ever subsequently gave different instructions, etc. etc. And the OP can give evidence that his father told him, shortly before he died, that he had executed a will which was in the custody of Mr X, which strongly points to his not have subsequently executed a different will with a different solicitor.

Yes, it's possible that after this draft will was produced the deceased gave new instructions, and a different will was drafted and executed, and somehow there is no hint of any of this on the file. But it's not very likely and if, after a thorough search, all the available evidence points to this being a draft of the will that was most likely executed, a grant of administration can be issued on that basis.

I'm aware you can't. It was largely a rhetorical question, to make a point to the OP as to why these processes exist.

And sure, this gets explored in an application for a grant. But that's the point. It's has to be explored. You can't just default to an intestacy situation, even though the draft will is the same outcome - is more about proving at conflicting will doesn't exist.

And all the points about solicitors files, records of update wills, or lack therefore, etc, is all valid. But the fact you need all of that professional evidence is a very good reason why the OP can't simply cut out the solicitor.

Victor

boetstark wrote: »

Why would a solicitor scan an unsigned copy onto their system.

It could be the original word processor file.

Peregrinus

Victor wrote: »

It could be the original word processor file.

What the new solicitor is most likely to have is a hard copy of the draft will that was placed on the client file by the old solicitor — the hard copy file having come to the new solicitor, even though the executed will didn't.

It would be usual that a copy of the final draft will is placed on the file - it would most likely have been sent out to the client for approval before the execution copy was prepared, and the file will include a copy of the letter to the client plus the draft will that was enclosed with that letter.

Peregrinus

Mellor wrote: »

I'm aware you can't. It was largely a rhetorical question, to make a point to the OP as to why these processes exist.

And sure, this gets explored in an application for a grant. But that's the point. It's has to be explored. You can't just default to an intestacy situation, even though the draft will is the same outcome - is more about proving at conflicting will doesn't exist.

And all the points about solicitors files, records of update wills, or lack therefore, etc, is all valid. But the fact you need all of that professional evidence is a very good reason why the OP can't simply cut out the solicitor.

Indeed. Where a will was executed but cannot now be produced, the first thing you need to establish is that it wasn't destroyed by the testator with the intention of revoking it, or because it was superseded by a different will. Once that's shown, then you need the best evidence you can get of what was in the lost will because, even though you can't find the will, it's important to give effect to what it is thought to have said, as closely as possible.

So it's all a bit of a palaver. But it's a necessary palaver. If the deceased is known to have made a will, that has to be taken seriously, and every effort made to establish what the deceased intentions were and to give effect to them.

The OP is entitled to be pissed off. Because of the loss of the will the estate is being put to expense, which comes at a cost to the beneficiaries of the estate. And, whoever else is to blame for that, it's not the beneficiaries.

The estate does have the right to pursue the matter, seek to identify who is responsible for the loss of the will, and pursue them for compensation. But the amount of the compensation would be the extra probate costs incurred because of the loss of the will, and the cost of investigating the matter and proving whose negligence or breach of duty caused the loss is likely to outweigh the amount of the compensation that could be recovered.

MostCuriousCat

Victor wrote: »

It could be the original word processor file.

Yes, this is what it would appear to be.

MostCuriousCat

Thanks everyone for your replies, it's been interesting seeing it discussed from a legal viewpoint and it's highlighted why a solicitor is necessary in this situation.

However, as Peregrinus said it is a bit of a palaver and what should have been a straightforward process has been made unnecessarily complicated and costly. And as Peregrinus also said I could pursue it but it wouldn't be worth the time or expense.

Thanks again for the responses, they have been helpful.