Second will discovered after grant of probate

a1994f · 04-03-2019 09:11PM #1

Would anyone be able to tell me what happens in the case of a second more recent will being discovered once grant of probate has been issued for an old will.

Will this cause probate to be revoked?

Any help would be greatly appreciated.

Credit Checker Moose · 04-03-2019 10:39PM

Have the assets been distributed?

a1994f · 04-03-2019 10:56PM

Credit Checker Moose wrote: »

Have the assets been distributed?

No probate has only begun

Teddy Daniels · 04-03-2019 10:58PM

Get like the most successful probate people in the country on this. There are many solicitors winging it on easy probate cases but this will be a bloodbath.
I don’t know who that is maybe people could cite how you would find out .

brian_t · 04-03-2019 11:11PM

Does the new will have the same executors as the old one.

a1994f · 04-03-2019 11:20PM

brian_t wrote: »

Does the new will have the same executors as the old one.

No it’s a new executor for the new will

Peregrinus · 05-03-2019 01:52AM

Are the assets disposed of very differently? Who will be affected, and in what way, if the new will is implemented instead of the old?

a1994f · 05-03-2019 12:48PM

Peregrinus wrote: »

Are the assets disposed of very differently? Who will be affected, and in what way, if the new will is implemented instead of the old?

The assets will be distributed completely different and the beneficiary of the old will is not named in the new one. There’s a new solicitor for the latest will too.

whomitconcerns · 05-03-2019 12:50PM

Now that sounds like a whole world of pain for all concerned. Get the solicitor on it asap... Could be expensive unfortunately.

coylemj · 05-03-2019 04:30PM

If the executor of the first will becomes aware of the existence of the second will but, having been issued with the grant of probate, distributes the assets regardless, do the beneficiaries of the second will have any claim against him/her? Assuming that the executor had no part in concealing the existence of the later will and was not aware of it's existence until now.

Is there any legislation or case law covering this situation?

Peregrinus · 06-03-2019 01:14AM

If a grant of probate has been issued in respect of the earlier will and the later will has now come to light, the proper course is to apply to court for the revocation of the grant already made, and for the issue of a new grant in respect of the later will. You should put the executor to whom the existing grant has issued on notice of the application as early as possible, as he cannot be criticised for distributing the estate under the terms of the grant he has if he is unaware of the new will, and of efforts being made to have it probated. To the extent that he has already distributed the estate in accordance with the grant he has and the will annexed to it, then in the absence of fraud or bad faith on his part, or at least on someone's part, it may not now be possible to remedy the situation.

If the differences between the two wills were minor, it might be possible to deal with the problem by getting all the affected parties - both the "winners" and the "losers" - to enter into a deed of arrangement in which they "tweak" the administration of the estate so that it matches the new will, and indemnify the executor for distributing the estate in accordance with the deed of variation. But this requires all the relevant parties to be of full age, mentally competent, properly advised, etc, etc, and the more extensive the changes are the harder this is to pull off successfully. Doesn't sound like it's a runner here.

coylemj · 06-03-2019 12:27PM

Peregrinus wrote: »

If the differences between the two wills were minor, it might be possible to deal with the problem by getting all the affected parties - both the "winners" and the "losers" - to enter into a deed of arrangement in which they "tweak" the administration of the estate so that it matches the new will, and indemnify the executor for distributing the estate in accordance with the deed of variation.

Looks like you missed post #8. Different beneficiary and solicitor. Chances of mutually agreed "tweak" looks like zero.

a1994f wrote: »

The assets will be distributed completely different and the beneficiary of the old will is not named in the new one. There’s a new solicitor for the latest will too.

Peregrinus · 06-03-2019 01:18PM

coylemj wrote: »

Looks like you missed post #8. Different beneficiary and solicitor. Chances of mutually agreed "tweak" looks like zero.

I saw post 8. That's why I said that the deed of arrangement mechanism doesn't look like a runner here.

coylemj · 06-03-2019 01:33PM

Peregrinus wrote: »

I saw post 8. That's why I said that the deed of arrangement mechanism doesn't look like a runner here.

You did say that it didn't look like a runner here, my apologies.

tretorn · 06-03-2019 01:38PM

The most recent will is the only one that counts surely unless there is an issue of the deceased not being fully compis mentis on the date the new will was signed.
The will is the voice of the dead from the grave and we refer to it as the last will and testament.

brian_t · 06-03-2019 01:59PM

coylemj wrote: »

If the executor of the first will becomes aware of the existence of the second will but, having been issued with the grant of probate, distributes the assets regardless, do the beneficiaries of the second will have any claim against him/her? Assuming that the executor had no part in concealing the existence of the later will and was not aware of it's existence until now.

Is there any legislation or case law covering this situation?

If the first will left an estate of €1 million to 10 people then none of them might have a tax liability.

If the new will left it all to just one person then they might have a large tax liability.

Does the Revenue have any claim against the executor.

coylemj · 06-03-2019 04:23PM

tretorn wrote: »

The most recent will is the only one that counts surely unless there is an issue of the deceased not being fully compis mentis on the date the new will was signed.
The will is the voice of the dead from the grave and we refer to it as the last will and testament.

+1 but the issue here is how the law can deal with the potential mess that could arise if the executor has already distributed some of the assets (especially cash and other liquid assets like shares) based on the first will.

Peregrinus · 07-03-2019 01:44AM

brian_t wrote: »

If the first will left an estate of €1 million to 10 people then none of them might have a tax liability.

If the new will left it all to just one person then they might have a large tax liability.

Does the Revenue have any claim against the executor.

Assuming the executor acted honestly, reasonably and with due diligence in applying for the grant of probate and then acting on it by distributing the estate in accordance with the early will admitted to probate, I don't see that anyone has any claim against the executor.

Different matter if he acted dishonestly, concealed the new will, etc. in that case I think the beneficiary under the new will has a claim against hin, never mind the Revenue.

What should the executor do if he has, honestly and in good faith, obtained a grant and started to act on it, but then a second (and lets assume undoubtedly genuine) will turns up? He should put a brake on the administration of the estate, he should notify the beneficiaries under both will, and he should allow time for the beneficiaries under the later will to take court proceeds to revoke his grant of probate, and get a new grant probating the later will.

Either the beneficiaries under the new Will will start court proceedings or (possibly, if general goodwill and reasonableness and realism prevails) the two sets of beneficiaries will get together and see if they can agree a distribution of the estate without going back to court. But if neither of these things happens to resolve the issue, what should the executor now do? If I were advising him I'd tell him to apply to court himself for directions as to what he should do; that's the only safe course.

The moral of the story: if you make a new Will for the love of God make sure everyone who might have an interest in the matter knows you have made it and knows where it is. And destroy the old will - physically, destroy it - to avoid possible confusion..

Second will discovered after grant of probate

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