I have a question which hopefully someone will be able to help me with.
I have a client whose wife (W) recently died. When he comes in he provides me with two “Wills”. The first is from 1997 and hasn’t been signed properly. Specifically W hasn’t signed it. The second is from 2015 and hasn’t been signed by anyone. Client believes that 2015 Will was signed but it cannot be recovered, we have no evidence to suggest The firm whom dealt with it cannot find it. In my view both Wills are defective as the testator hasn’t signed either. As far as I am aware there are no previous Wills and thus intestacy would apply instead.
My client has spoken to a lawyer friend of his whom has suggested that there is a ‘common law Will of intent’. The proof of this being that firstly both Wills exist and that we should be able to obtain notes from the 2015 Will that this was W’s instructions and so intention to sign the Will.
I have spoken to colleagues in the office and the idea of a ‘Will of Intent’ is new one us. Is this something which others have come across?
No, there is no such thing as a “Will of Intent” in the UK, although it may exist in other jurisdictions. The provisions of s9 of the Wills Act 1837 are unambiguous and, until there is a change in the law, have to all be met.
In relation to whether or not the 2015 Will can be proved with a statement from the firm who prepared it, they would need to hold a copy of the signed document, to enable a copy to be signed. A simple statement saying one was signed will not do, as there is no guarantee that this was in fact correctly executed.
Furthermore, if the last known whereabouts of the original Will was with the testator, and it now cannot be found, then the presumption is that it was destroyed by the testator during their lifetime and so revoked.
I hope this clarifies the situation. You are almost certainly looking at an intestacy unless a copy of the signed Will exists and the firm can confirm that they had it in storage but have lost it.
Thank you Ashley. I didn’t think that a “Will of Intent” was a thing, but it was just one of those moments that I was wondering if I was missing the obvious!
I absolutely agree that all seems to be a intestacy case, given that it does not appear that the deceased actually signed a Will.