I am trying to have a copy of a Will admitted to Probate under Rule 54 NCPR 1987. The deceased prepared a type-written Will and executed it. He then posted it to his solicitor who replied, acknowledging safe receipt. The testator retained a copy of the Will with his papers. The testator also wrote to one of his Executors A telling him that he had made a new Will, appointing A and B as Executors and that he had sent the original Will to Mr X of Y firm. Some years later the deceased received a letter from Y firm telling him that they were closing and that they were sending his Will to Z firm. He also received a letter from Z firm saying that they now had his Will. The relevant letters were with the deceased’s papers.
After the deceased died Executor A approached Z firm and discovered that the Will that Z firm was holding for the deceased was a much earlier Will and it was at that point that the two Executors instructed me. It appears to me that when Mr X received the Will from the deceased he did not store it with the much earlier Will that his firm was holding and thus that only the much earlier Will was passed to Z firm. What happened to the later Will is a mystery.
I prepared an Affidavit, exhibiting the relevant correspondence and stressing that, as the later Will had been sent to a firm of solicitors a few days after it was made (and acknowledged by that firm) the deceased could not have revoked it, as it was not in his possession after he sent it to the solicitors. I received a letter from the Probate Registry asking who would be entitled on intestacy and asking for notice to be served on any such persons.
The deceased was an elderly bachelor and had no children. He was an only child and his parents had long since predeceased him. Executor A was very friendly with the deceased and knew that the deceased’s mother had only sibling, a sister, who had died some years ago, unmarried with no children. There were some uncles and aunts on his father’s side, so if the deceased had died intestate the people entitled would be his cousins on his father’s side. Executor A did some “digging” and found a family tree among the deceased’s papers, from which it is clear that there are various cousins on his father’s side. One cousin had been in contact with the deceased and Executor A has spoken to him and that cousin has one sibling and he and his sibling have no knowledge of the whereabouts of the other cousins.
The estate is not a large one, being valued at approximately £250k. It seems to me to be very unfair that the estate should have to bear the costs of trying to trace the cousins, so as to serve notice on them, when the Will was lost by a firm of solicitors. I realise that if the Will had been traced to the deceased the position would be different but surely when it is clear from the correspondence that the Will was lost by a firm of solicitors, the burden of proof should be different.
Has anyone had experience of a similar situation? In such circumstances is it always necessary to serve notice on those who would be entitled on intestacy, even when the Will was lost by a firm of solicitors and indeed also when those entitled on intestacy are not close relatives but cousins, most of whom were not in contact with the deceased?
Any guidance would be much appreciated.