Handwritten Will - Intestate?

B

BadBoy

Guest
One of my friends parents recently died and she is now processing the will. The solicitor has received all the details of the deceased parent and the will that was left. The will was not written with a solicitor but rather at the deceased's employers HR dept 30/40 years ago (and not with a company barrister or solicitor). The will is not being contested at all by the family and the will leaves everything to the surviving spouse.

The solicitor is now questioning the originality of the will, saying that because it is handwritten and not completed at a solicitors office, it *may* be thrown out by the probate office/court as being a photocopy or someother non original document (BTW the witnesses are now deceased as well).

The solicitors have suggested that the family should go intestate. The children have all been asked to sign a document to renounce any interest in the estate, and to assign sole inheritance to the spouse (surviving parent). The family feels this is wrong as the deceased spouse (& parent) clearly left a will and don't want to disrespect the wishes of the deceased.

My questions are:
Does the solicitor gain from this (financially or with respect to time spent handling the case, time is money :) afterall )?
Are there costs associated with intestate processing that the family would pay, over and above the cost of the solicitor?
What would the effect of ignoring this advice really be?
Has anyone else ever been in a similar situation?
Any suggestions on an appropriate course of action?
 
I don't think the solicitor is trying to gain anything here but may be trying to save the hassle and expense of having the will rejected by the Probate office. However although he may be trying to make things easier I'm not sure if it's the right thing to do. The person who acts as administrator (presumably the spouse) has to swear an oath saying that the deceased died intestate. Not really correct in this instance. Is the spouse appointed as executor in the will ? If so its really her decision. I think that if there is real doubt about the will I would have a Barrister, preferably a senior counsel, specializing in this area look at the will and advise on whether it is valid or not. Based on that advice the executor named in the will can decide whether to probate the will or not. Even if the will is a copy, it must be a copy of something. It is difficult to probate an unclear will but not impossible. I would say that the solicitor is trying to make things easier, but life's not always simple.
 
The sucession act does not require that a will be printed or typed or prepared in a solicitors office. So long as it is witnessed, I can't see how it could be thrown out by the probate court.
 
The people in the probate office are really really helpful so maybe the executor should call in to your local office with a photocopy of the handwritten will and see what they say????
 
I'd say the solicitor is more questioning the validity of the will. A will must be in a particular format to comply with the terms of the relevant legislation. It can be handwritten so that is not an issue. It is far more likely that the solicitor believes that the will will not get through the Probate Office. Sheena1 suggestion is a good one.

mf
 
Thanks for all the advice guys. I will pass it on. I think the best course of action will be to present it at the probate office and see what they say, since they will need to rubber stamp it anyhow.

PS: For my own interest, mf1, you say that the solicitor may feel that the will will not get through the Probate Office due to its format, what is the appropriate format?


Thanks Again!
 
REQUIREMENTS FOR A VALID WILL (Sections 77 & 78)
I. The will must be in writing.
2. The testator must be over 18 years or be, or have been, married.
3. He must be of sound disposing mind.
4. He must sign his name, make his mark or acknowledge his signature in the presence of two witnesses, present together.
5. His signature or mark must be at the end of the will.
6. The two witnesses must sign their names in his presence.
RECOMMENDED FORMAT FOR A WILL
(i) Name and address of the testator.
(ii) Revocation of earlier wills and codicils.
(iii) Appointment of Executors (preferably more than one, giving addresses and relationship, if any).
(iv) Dispositive provisions.
(v) Residuary clause.
(vi) Date.
(vii) Signature of the testator.
(viii) Attestation clause
(ix) Signature of witnesses with addresses and descriptions.

Unless you are very clear and very sure of what you are doing, you should always get a solicitor to draft the will.

mf
 
dont forget to ask the solicitor what his fees will be...like property transactions will be based on value of estate but i presume that this can be negotiated. keep away from barristers!
 
Nobody mentioned that getting married nullifies an extant will. Hence signing a new Will and getting Registrar or Clergy to witness it
 
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