I’m in the process of applying for my first grant on behalf of a client and would appreciate some guidance.
The deceased, who had two adult children, had prepared a Last Will in which he left his entire estate to his spouse. In the event that his spouse predeceased him, the estate was to pass equally to both adult children. The family confirms that the Will was in the deceased’s possession and that they had seen it a few months prior to his death.
Following his passing, the family was only able to locate a bound copy of the Will bearing signatures. However, the last page appears to have photocopy markings. The estate is valued at approximately £900,000.
The family is keen to prove the copy of the Will in order to avoid any part of the estate being distributed under intestacy rules.
I would be grateful for any advice on how best to proceed in this situation, given that the original Will cannot be located.
You have two options in this scenario. One is for the family to simply enter into a deed of variation whereby the children give up their share to the spouse. Assuming this happens within two years of death it can be ‘read-back’ for tax purposes.
The second is you can make an application to prove the copy Will. Again assuming all vested parties support the application the court are likely to grant the same. Option one is likely to be the easier route, although technically perhaps not the most correct one.
Where a missing will was last traced into the possession of the testator, there is a rebuttable presumption that the testator validly revoked it by destruction.
HOWEVER
If, at any time whilst the will was in the testator’s possession the testator the testator was without capacity, the above presumption is effectively reversed the alternative rebuttable presumption being that the testator destroyed the will whilst lacking capacity so that it is not revoked (and a copy could be proved).
Before considering the grant application, it will be necessary to establish the position, as they may need to be recited in the application itself.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Thank you Haroon and Paul for your helpful advice.
I have a follow-up question and would appreciate further guidance from forum members.
If I proceed under the intestacy route and execute a Deed of Variation (DoV), does my client need to pay Inheritance Tax (IHT) before applying for the Grant of Representation? In this case, the entire estate (valued at under £1 million) is passing to the spouse.
Alternatively, is it possible to execute the Deed of Variation prior to the Grant and submit both documents together to the Probate Registry?
Any advice on how best to handle this would be greatly appreciated.