Lost Will and Property Issue

Trusts Discussion
1

A and B were an unmarried couple. B died last year. A has 4 adult children from a previous relationship. B had no children of his own and is survived by a sister. A and B owned a property jointly with C (one of A’s children) as tenants in common in equal shares.

B had made a Will, but the family have lost the original and the Solicitors who drew it up (following an unfortunate series of disastrous IT and archiving problems) are unable to provide a copy. The fee earner in question cannot recall the terms of the Will.

I am told that A, her 4 children and B’s sister all agree that the provisions of the lost Will were that B left his entire estate to A if she survived him. I am awaiting to hear from a family friend who read the Will to see if she confirms this and if she remembers who the Executors were.

I hope but I am not sure there will be sufficient evidence to reconstruct the Will. If not, I am considering a Settlement Deed reciting what has happened whereby all parties confirm they agree that the Will provided for B’s share of the property to pass to A. After that, the intention is for C to buy out A’s 2/3 share, so that she can buy a new property.

I understand that B had no other assets of value, so it may not be necessary to get Probate if the share of the house can be dealt with between A and C.

Has anyone any experience of a similar situation and/or any ideas how best to deal with it?

Lee Penhaligan
Scott-Moncrieff & Associates

2

If you cannot find the original or a photocopy of the signed Will then the estate would be intestate and the sister would be entitled.

If the sister agrees that A is entitled then I would suggest having a Deed of Variation prepared that leaves the estate to A and is signed by B’s sister. A Settlement Deed would not dispense with the sisters legal entitlement to administer B’s estate

I don’t know how you can transfer out B’s share of the property without a Grant of LOA as it is tenants in common?

Gemma Van Duke
Bishopsgate Law

3

A Deed of Variation should work.

Patrick Moroney

4

I agree with Gemma that in the absence of evidence setting up the “missing” will, B should be treated as having died intestate. However I would then wish to confirm the family history before assuming that A is the sole beneficiary under intestacy.

If so, A and C should be able to deal with the property without a Grant of representation, as they would be the [surviving] trustees of the trust of land under which it is held. However, whilst this would allow them to sell etc, it seems that the proposed course of action might conflict with the “self-dealing” rules affecting trustees ….? It is a few years since I dealt with those, so apologies to all if the position should have changed now.

Kevin Mullen


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