Ethics in proving a will

Trusts Discussion
1

Hello

We drafted a will in October 2020. Within five days of its execution, the testator executed a second (home-made) will which substantially changed the provisions of the first.

In the first will , residue was split 1/3 to Child 1, 1/3 to child 2 and 1/3 to grandchildren. In the second, the grandchildren receive small legacies and the residue is divided 1/2 each to Child 1 and Child 2.

Child 1 and Child 2 are the executors of both wills. The testator has died and we are being asked to prove the second will.

The second will has been executed correctly, but the circumstances and reasons for it are unclear. The testator would have been over 90 and there is no capacity report for either will.

We are not happy - without knowing more - that that the will was executed with full knowledge and approval, or that no undue influence was put upon the testator, or that he had capacity.

Questions are -

  1. Do we owe a duty to the testator to raise queries about the second will if we have doubts as to its validity?
  2. Do we owe a duty to the disappointed grandchildren on the same basis? There is obviously a conflict if we tip them off?
  3. Should we decline to act in proving the second will while these doubts remain?

Thanks for all advice

Matthew Faulkner

2

I usually see questions after Jack Harper and others have had their say, so I am a little surprised no-one sems to have given you an answer. First I imagine that the Law Society will have some guidance in your situation which will give you a starting point.

If the Executors (as beneficiaries) are happy with the situation surrounding the second Will and its distributions surely a memo confirming such agreement would solve the problem, especially if everyone agrees? This is for your protection.

You mention the Testator in question 1. I think you mean the Executors.

In any event does the second Will revoke the first Will?

Your clients are the Executors and not the beneficiaries. This means you have a duty to advise the Executors, and in these circumstances you should discuss both the first and the second Will with the Executors and your concerns as to coercion / undue influence, and the witnesses or those present at the second Will signing; and if not satisfied you should decline to prove both Wills. I expect the Probate Registry will accept the second Will for probate purposes.

I do not think you need to discuss the situation with the Grandchildren as although they are beneficiaries they are not the Executors.

If it emerges that there was a family row or falling out or a change in the financial situation of the Executors (as the children in the first degree to the Testator - such as one of them winning the pools) or in the financial situation of the Testator (such as being sued for a large sum of damages / threat of bankruptcy) which may have caused the second Will, I would decline to act, as you are too close to the fireworks that might arise. Better to retain your professional independence than get involved in a family litigation situation that is not of your creation, especially as you might be called as a witness in any subsequent litigation.

I would certainly make sure that all the notes and details relating to the creation and signing of the first Will are locked away safely until the issue is finally resolved.

Sorry not to be able to quote chapter & verse, as my comments are basically as a matter of practice.

No doubt there are others with contrary views, and greater minds than my own, but a least you have some sort of input towards (I hope) solving your dilemma.

Yours sincerely,

Peter Double / Probate Resealing Services.

3

Thank you, Peter. The SRA advice was very similar. Even if I suspect coercion and/or undue influence for the second will, I cannot advise the disappointed grandchildren of my concerns - to do so would breach my clients confidentiality. If my doubts remain, I shall decline their instructions