Will proven to be valid with affidavit of due execution – probate case study

07 May 2019

Client Situation

The deceased, Mr H, left a Will which had been professionally drafted by a bank. In this Mr H named his ex-wife, Ms H, as his sole Executor and sole beneficiary of his Estate.

Following Mr H's death, Ms H instructed Co-op Legal Services to assist with Probate. The case was assigned to Associate Probate Case Manager, Sian Davies.

Sian identified some potential issues with the validity of Mr H's Will, which would need to be cleared up before applying for Probate, otherwise there was a strong risk that the Probate Registry would reject the application. If this happened, Ms H would have been entitled to inherit nothing.

How We Helped

As the deceased's ex-wife was the Executor and main beneficiary of the Estate, Sian first needed to establish exactly when Mr H had made his Will. If the Will had been written while the couple were still married, their divorce would have directly impacted on the terms of the Will.

When someone gets divorced, if they have an existing Will (which was made before their divorce) and this Will names their ex-spouse as an Executor or beneficiary, then after their divorce, the ex-spouse will no longer be entitled to inherit from them or act as their Executor. Their Estate will be administered as though their ex-spouse had died before them. For more information, see What Happens to My Will after Divorce?

For this reason, during her initial phone call with Ms H, Sian enquired as to the date that the Will was written and the date that the divorce had taken place, to confirm whether Ms H would be affected by this law.

Ms H was able to confirm that the Will had been written after she and Mr H had divorced, so this would not be an issue.

However, Sian then identified a second potential issue with the Will's validity which would need to be resolved before submitting the Probate application. Upon inspection of the Will, Sian identified a potential problem with the attestation clause. One of the witnesses signatures had been crossed out and another person had then signed the Will as a witness and the amendment had been initialled by our Deceased and the two witnesses.

Sian knew that the Probate Registry might question this when submitting the Grant of Probate application, so she made contact with one of the witnesses. She obtained an affidavit of due execution from the witnesses, who was a former employee of the Bank, and this witness outlined the circumstances of the day that the Will was executed.

The Witness explained that it was the Bank's protocol for Wills to be witnessed by two employees of the Bank. However, the first witness was not an employee and so their signature was crossed out and another employee then witnessed the Deceased's signature and signed the Will.

It was important for Sian to obtain thorough evidence surrounding the execution of the Will as, if it was proven to be invalid, Mr H's Estate would have been dealt with as though he had died intestate (meaning he hadn't left a Will). In this situation, inheritance laws called the Rules of Intestacy would have come into play. Our client (the Executor of the Will) would not have been entitled to inherit from the Estate under the Rules of Intestacy.

The Outcome

Once Sian had obtained the affidavit of due execution, she submitted this to the Probate Registry together with the Grant of Probate application. The Probate Registry confirmed that the evidence provided proved that the Will was valid and they then issued the Grant of Probate.

The administration of Mr H's Estate could then continue, and his Estate was distributed in line with the terms of his Will. Despite these obstacles, the Estate administration was completed in just 7 months. Our client was very pleased with this outcome.

Client Testimonial

"I would like to thank you for the efficient way that you have dealt with the Estate and kept me informed on a regular basis. Thank you very much." Ms H., Denbighshire

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