Getting client to sign 2 original wills

Hi All,

Another question to pick your wonderful minds.

We get our clients to sign two original wills. One they will take with them and one we keep with us in a secure location.

Is this ok or can this be problematic legally.

Ps: Both wills are signed at the same time in front of us in our offices.

Any information would be highly appreciated.

Regards

Awais

Awais, one method of revoking a Will is by destroying it, eg tearing it up completely and throwing the pieces away. If there is one original Will with you and another with the client, how does he revoke it? And how do you prove whether or not he has done so?

Julian Cohen

Simons Rodkin

How can you have 2 original wills?

Does the one signed second revoke the first one?

If one is signed and intended to be a copy, which one is it?

I would be wary of such a practice and suggest that which is intended to be retained by the testator as a copy is clearly marked as such, so that there can be no question that it is executed with the intention it is The Will.

Alternatively, once The Will is signed, you might just add the initials of the testator and witnesses to the copy, which the testator takes away. The testator would not need to sign or add their initials if it is intended merely to remind the testator of the terms of The Will.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

You could try a certified copy, to the limited extent that that may assist you, but two originals is unadvisable.

There should only be one original Will and copies made if needed.

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Unless orchestrated carefully it is not possible for both wills to be signed and witnessed at exactly the same time. I suspect in your case that one of the signed wills will de facto
have been executed before the other.

Accordingly, in particular if the standard wording appears at the start re revoking all previous wills the latter executed will revokes the earlier sighed will even if the time difference in execution is only a matter of seconds/minutes.

The fact that the contents are identical is irrelevant to the revocation.

Seems bad practice to me.

Malcolm Finney

Absolutely not possible to have two original Wills.

Unless your clients are all ambidextrous and can actually physically sign both Wills at the same time, the second of the two identical Will revokes the first.

As the Wills are identical they can then get muddled and no-one will know which is the valid Will and which one had just been revoked. Highly dangerous practice.

What’s wrong with a good old photocopy and digital copy for backup?

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i had an estate a few years ago where by at least three original identical wills had all been signed at the same time. no way of knowing which was the last will and as such we had to submit all wills to the probate registry and each executor and witness was required to sign affidavits regarding the multiple wills. only one will should ever be signed to avoid this.

Why stop at two originals?

3 Likes

I have 5, one for each executor/trustee. However I think after reading this my shredder willl be in action tomorow!!

But how will you know which is the real will?

As identified by Verity Shepherd, you may need to prove all 5.

Might it be preferable to get the client to make a new will (just the one, though) revoking ALL existing wills, thus removing any uncertainty?

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

Original means the first. You can’t have one first and then a second first.

Provide the clients with a photocopy, scan the original in to your systems and store the original away. If you are worried about the original being misplaced or destroyed in your work place give the clients the original with the warning they should keep it safe and secure.

I fear you have revoked the first Wills with the second. As they would appear to be exact copies thankfully the contents are the same but an administrative pickle.

1 Like

Not sure if you are aware. Under section 126 Senior Courts Act 1981 the High Court provides a “safe and convenient depository” for the safe custody of the wills of living persons. The testator pays £20. It is a single one off payment. The High Court retains the original in safe custody and issues a certificate to the testator. On death part of the probate process is that there is an automatic search of the High Court depository for an original will of the testator. To store the original you pop it in an envelope, stick a label on the outside. It must be the High Court form PA7ENV (11.20). Then you send it off to Newcastle probate registry - job done!

An allegation that “the will in front of me is the first to be signed and thereby is revoked by the signing of the second will” is impossible to defend surely when it’s known that 2 were signed. It is impossible to sign two simultaneously, so one surely revokes the other every time.

Neil Fraser
Northland Wills Trusts & Probate

Hi,

Forgive me - I’m new here so excuse me if I’m asking a stupid question…

I appreciate that (usually) the last version of a will which was signed becomes the “live” will, and it invalidates all previous wills. And obviously, it isn’t possible to sign two copies of a will “at the same time”.

However, wills are only dated, not timestamped. So if two wills exist with the same date it isn’t possible to say which one was signed last. And if the contents and signatories are identical, what does it matter?

My mother is currently redrafting her will, of which I am an Executor. The original signed copy of her current will is held in safe storage by her bank. Obviously the bank is providing this storage free of charge because they expect to be able to persuade the Executors to use their services (or probably the services of a sub-contracted solicitor) when my mother dies.

Now, I would prefer to have a degree of choice at that difficult time and would sooner the Executors select our own solicitor rather than use an unknown one far from home and pay the bank a commission for the privilege.

On investigation I discover that lodging an original will with the High Court involves a trip to a “local” Probate Registry (my nearest is only 35 miles away, so I’m quite lucky), or to entrust the original to the Royal Mail by posting it to Newcastle. And I don’t really fancy either of those options. And on top of that there’s a delay of “around four weeks” when you want the will back again.

So the obvious answer is to pop the original signed copy of the revised will into my safe at home. But what if it gets destroyed somehow (fire or flood, for example)? Simple – have a second IDENTICAL signed copy WITH THE SAME DATE AND SIGNATORIES stored in another Executor’s house.

When we need to enact the will we would only present one of the “originals” (destroying the other one if necessary).

What’s wrong with that?

Peter - You’ve already said “what’s wrong with that”, so I suspect you realise the evidential problems arising from two contemporaneous wills, whether in identical terms or not.
I also suspect that you are confused about the difference between lodging a will for probate [ie after the testator has died] and the possibility of depositing the will of a living person. Furthermore, in my experience, banks only store wills for free if they are appointed executors, whether sole or jointly - and whilst you state that you are an Executor you also state that you would prefer that “the executors” appoint solicitors of your choice …
The “obvious” answer is for your mother to make a new will [if possible], with the original being stored in one place but with verifiable copies being available, in the event of loss. Doubtless your preferred solicitors could arrange this. They should also be able to provide evidence [if needed] that your mother had capacity, there was no undue influence and check there was no contradiction with any previous will.

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Hi Kevin,

Many thanks for taking the time to read and reply to my question.

I understand the difference between lodging a will with a solicitor for assistance when obtaining probate, and lodging it with a solicitor or bank for safe keeping before the testator dies. My question solely relates to the safe storage of wills before the testator dies, where such storage is free and not associated with anyone who may wish to apply charges to access the will when the testator dies.

Hence my posit that “clone” (rather than photocopied) wills could exist, where two identical wills are created within seconds of one another, and not even the signatories could tell them apart. Each clone could reside in a separate location to make it unlikely for both to suffer damage or destruction at the same time.

(For the record, my own will was placed with my solicitor “for safe custody” when he drew it up, and no mention of storage fees was made on his invoice. Similarly, my mother “thinks” that she has left her will with her bank and does not recall paying them for the service. For both wills all the executors are family members, so my assumption is that the party who is keeping the original of the will expects to get first bite of the cherry when it needs to be enacted, and will thus be recompensed for the safe storage service.)

As you say, I do now “realise the evidential problems arising from two contemporaneous wills”, having read the discussion in this thread. However, I still can’t see how the “clone” wills would fall into this category, as they would be totally and utterly identical, so if both where produced to obtain probate there would be no conflict. (Though as I say, it is probable that one of the clones would just disappear when probate is sought.)

So I still ask; “What’s wrong with that?”

Thanks again.

Best regards,

Peter.

Peter
The simple answer to your question is that you cannot do it, in practice.
To prove a will [etc] you must swear [or a modern equivalent such as a “statement of truth”] which is subject to serious criminal penalties for perjury if your statement is knowingly wrong. You cannot know [and therefore swear] that the version of the will submitted for probate is the last will, unless perhaps this is identified as such, e.g. by being timed - which destroys your idea of having duplicate albeit identical wills.
To destroy a will, even if you think it may have no effect, is also of no legal effect unless done in the presence of, and with the full consent of, the testator - clearly not the case in your scenario. Should one copy be elsewhere, e.g. with a bank, you are guaranteed long running, and very expensive, arguments - for no apparent reason.
However, you seem more concerned that whoever holds the will may try to use this to control matters in some way? I can see no reason for concern based on the details in your post. The solicitors you mention cannot charge if this has not previously been agreed; either the bank is charging or it is not - your mother’s bank statements will confirm if she is unsure, but that is for her to decide, and perhaps make other arrangements.
After a death whoever is holding a will would normally expect joint instructions from all named executors. In this case you say it is all within the family so there should be no difficulty. If that is not the case, perhaps you should rephrase your query?

Hi Kevin,

Thanks again for humouring the naive ideas of an ignorant layman and trying to put me right!

To clarify, yes, the executors in this case are myself and my brother.

For context; my background is in software development, and my nature is to create numerous on and off-site backups of anything remotely important. The concept of having just one usable copy of something as important as a will is abhorrent to me! (Yes, I appreciate that COPIES of a will can be made, but as these are not signed-and-sealed they can only serve for information, and are consequently as good as useless.)

I take on board your comments that charges for storage of wills would need to be agreed up-front, as (presumably) would any charge which might subsequently be imposed for the will to be released to the executors. However, my paranoia does kick in when I consider just how safe the “secure” storage facilities offered by solicitors might be. One could hope that they are situated above any risk of flood water, and that reasonable fire and physical security precautions have been taken. But are they literally bomb-proof? What happens if the facility suffers a catastrophic failure and all of the unique documents therein are lost forever? Why wouldn’t you want to backup these irreplaceable documents?

As for swearing that a will is the “last known” when submitting it for probate, I believe that if faced with a polygraph test I would have no problems passing, as it really, really, IS the last will that I know of, when the only other document in question is a clone which is absolutely indistinguishable from it. I KNOW it to be the last will and testament of the testator.

And even if the wills were timestamped a few minutes apart to identify the “later” one, in practical terms either would be submittable if the other didn’t exist (because it had been destroyed either wilfully or accidentally). Whilst this might not adhere absolutely to the letter of the law it complies with the SPIRIT, as the testator’s wishes will get enacted, whereas they will not if single copy of a will gets lost.

Have I convinced you that it’s a good idea yet? :wink:

Best regards,

Peter.