Solicitor Has Lost Will

[chris858]

My Mother passed away recently,and it now transpires that the solicitors have lost the will.They still have the draft copy of the will but they are now proceeding as if there is no will.In my mothers will she had left me the flat we lived in.But now my sister believes she will get half of the flat.Is there no way i can get my mothers wishes adhered to?I live in scotland,so I understand the laws of probate are slightly different.

[Peter Pedant]

They presumably are saying they havent lost the will
they sent it off to your mum who didnt execute it

oh dear - not sure what advice I can offer since it may be a question of proving facts rather than law.

[DTCwordfan]

Consult with another solicitor - I would think that the Judge would rule that a draft in this incidence is valid.

[Peter Pedant]

Consult with a solicitor
I am not sure about the second part of DTC's advice

( altho Suggs v Lord St Leonards springs to mind - that is where the child has read out the will to the grandfather every night for so long and they prove he hasnt burnt the will ( coz the codicils are still there ) ]

and yes I can see the Chancery lawyers rubbing their hands

[chris858]

Just to make it clear I have a letter from the solicitor informing me that they have lost the will.

[woofgang]

Can you prove they had the will, that there actually was a will? Are they agreeing that there was one and that they lost it?

[factor-fiction]

Looks like it, woofgang.
chris- have the solicitors advised you what the next step should be?

[woofgang]

In that case consult quickly with another solicitor to get a view on the liability of the first solicitor. Do they confirm that the lost will was properly signed and witnessed? Not sure about scots law but you say they are proceeding as though your mother died intestate. If I were you and its possible in scots law, I would be formally disputing this.

[chris858]

Yes they do confirm that the lost will was properly Signed and witnessed.

[woofgang]

Hmmm, so they are saying that there is no will because they have lost it, but, at the same time, they are proceeding, if I have understood you, as though they are the executors?

[woofgang]

Did your Mum not have a copy?

[chris858]

Yes,they are now proceeding as though my mother was intestate,and they will be acting as executors.

[chris858]

No,my mother didn't have a copy of the will unfortunately.All that can be found is a draft of the will.

[woofgang]

but they have no evidence that this was your mother's intent because they have lost the will? Tell them to stop immediately and get legal advice!

[factor-fiction]

When you say a draft copy do you mean they have an unsigned copy of the final will? Is the draft the same as the one you thought was the final one? It seems odd that have a draft but not the final one. And have they got any authority to act as executors- they may have a letter of instruction but if they've lost that too then I can't see what authority they have

[Barmaid]

I am no Scottish law expert, but there are certain principles that will apply in Scotland. You do need expert advice.

Something you have said is just not right. If they are proceeding as if she were intestate, they have no right to assume the position of executor. An executor can only be appointed under a Will.

I would 1) take advice 2) ask them if you can see a copy of the Will file (this may determine whether there was a validly executed Will which has been lost or whether the Will was never executed.)

[chris858]

I will be getting legal advice asap,in regard to the draft will i believe it is signed by my mother.

[DTCwordfan]

The witness's statement will be very important in supporting this case.

[Barmaid]

Well I dont know if there are any scottish experts about, but certainly in this country if a Will is properly executed and is then not revoked and no presumption of revocation applies but the Will is lost, a copy can still be proved.

[factor-fiction]

I'm still not clear what you mean by a 'draft will' that your mother had signed. Do you mean she had signed it but it hadn't been witnessed,

[chris858]

The draft will is my mothers wishes initially written down by the solicitor,my mother then signed it.The solicitor then had the proper will typed up,my mother signed it and it was properly witnessed.This has been confirmed to me by the solicitors.I do know that copies of the draft have been sent to banks etc to prove they are the executors,and have been accepted as such.