To Challenge Or Not To Challenge?

[straydog]

I am the sole surviving relative of my uncle who died last year.

He left all his estate to his former wife, whom he later divorced, and he also made her his executor.  She is still alive.

When we found his will he had scribbled vertically through the two pages and wrote on the top of the first page “Destroy.  Not current”. 

He also completely obliterated his signature at the end.

We didn’t find any other will and the solicitor says that in their opinion the will is still valid under Sections 20 & 21 of the Wills Act 1837.  I can see that would be the case except for the obliteration of the signature.  It is completely unreadable.

The assets are probably worth about £1.5 million and I’m not sure how to proceed.  Whether to challenge it knowing that the divorce was acrimonious and so it was obviously his intention to strike her out of his will or do nothing.  Potentially it could cost me a lot of money if I lose.

[perseverer]

How do you prove you didn't alter the will yourself?

[davebro3]

In what circumstances was the will made & found? It is normal for the original will to be retained by a solicitor & the testor keeps a copy. If the copy was altered/defaced but the original remained untouched I don't think a challenge would succeed.

[Barmaid]

Did he get divorced after he made his Will? If so s18A Wills Act 1837 will apply.

Seek specialist legal advice and quickly.

 

[barry1010]

Our Wills aren't lodged with a solicitor.

Are you in the UK? A Will written before a divorce is treated as if the ex-spouse died before the testator and gets nothing.

A Will defaced in such a way would not normally be valid.

I suggest you spend some money seeking advice from a specialist solicitor 

[davebro3]

Whoever gets it there will be circa £400k IHT to pay - a nice little earner for robber Reeves!

[Canary42]

I think yu need a second solicitor's opinion, one specialising in Wills.  

[Ellipsis]

> the solicitor says that in their opinion the will is still valid under Sections 20 & 21 of the Wills Act 1837

What solicitor is that? Did that solicitor mention Section 18A of the same Wills Act 1837?

> Seek specialist legal advice and quickly.

I agree!

[bednobs]

Who is acting as executor ATM and in what authority? 

She may have a more up to date colour of the will than you

[straydog]

Thanks for all your advice.

To answer a couple of your queries:

I agree it's odd that he didn't keep his will at his solicitors.  This isn't a copy though it is the original.

His ex wife is named with a partner in the firm of solicitors as the executors in the will and they are acting  accordingly.

I will try and find another solicitor who specialises in such things but wonchathe the earth

 

[straydog]

Sorry! Won't charge the Earth!

[davebro3]

With a million quid at stake I would look for a solicitor with competence & expertise & hang the expense. The foregoing comments strongly suggest you will win.

[newmodarmy]

There must be another copy of the will, possibly a certified copy, or maybe there is even a later will you haven't seen, as the executors (ex-wife and the solicitor) must have something which they believe gives them authority to act.

[straydog]

No as the solicitor involved has sworn an affidavit she believes this gives her the power to act.  Apparently there was no later will found or even a copy.

Thanks for all the info re Section 18a of the Wills act.  Trouble is I can't remember when they got divorced but it was a long time ago.  The will was dated 2006.

I think I will ask the solicitors involved whether they had considered this section.  It may be the simple solution!

[Barmaid]

Whilst the solicitor may believe the Will is still valid (ignoring for one minute the provisions of s18A), that does not mean it is.  This is why cases end up in Court.

There is quite a body of case law on obliteration of a signature.

You must take independent legal advice.  It is pointless asking the solicitor for the executrix since she obviously believes in the validity.  Seek advice from a solicitor or direct access barrister who specialises in contentious probate.  You should act quickly since you may have to take urgent steps to protect the position.

[davebro3]

The ex's solicitor is acting in her interest. It is naive to expect that he/she would give any credence to a claim on your behalf.

[straydog]

Thank you everyone for your advice.  You've given me a lot to think about.  I shall definitely seek independent professional advice.