What is the legal position if you find a Will after probate has already been granted?
Dean Brunt tragically took his own life in December 2007. Following Dean’s death, his mother obtained a Grant of ‘Letters of Administration’, on the basis that Dean had passed away intestate (i.e. without leaving a Will). It was then not until 2016/2017 when a Will made by Dean in 1999 was discovered. It was signed by Howard Day, Dean’s legal adviser, as Dean’s Attorney. However, the authenticity of the new Will was not clear-cut. Mr Day was not a Solicitor. Furthermore, Mr Day had been convicted of dishonesty in 2003 in respect to a fraudulent business known as Fayers Legal Services Limited.
Dean’s mother refused to accept that the Will was genuine, arguing that it had been created after Dean’s death. She had already distributed Dean’s estate and refused to consider going back on what she had done. A court action was then pursued by Dean’s sister (a beneficiary under the Will) to revoke the ‘Letters of Administration’ and for the Will to be admitted to Probate.
The judge decided that the Will was indeed genuine and so should be admitted to Probate.
The case shows that it is possible to rectify a probate mistake even if a number of years have passed and that if you find a Will after probate has already been granted it may not be too late to do something about it. This applies where a Will is found when it had been assumed the deceased died intestate (as in Dean’s case) or where a Will is found that was made at a later date than the one previously admitted to probate.
So, if you do find a Will after probate has been already been granted, theses are the things to consider:
- Does the new Will dictate a different order of distribution or different beneficiaries? There is little point in pursuing a legal action unless the two positions are materially different;
- The executors named in the new Will can ask the court to revoke the original ‘Grant of Probate’ or ‘Letters of Administration’, even after a number of years have elapsed;
- A new Grant will be issued so that the estate can be dealt with under the terms of the new Will;
- It’s important to consider whether the assets can be recovered if the estate has already been distributed. The doctrine of ademption may prevent this and it will also be very difficult to recover property that has been purchased by a third party;
- If the previous executors/administrators acted in good faith then they are unlikely to be held liable, though if solicitors are at fault for the new Will not coming to light earlier then they may be negligent; and
- Claims under the Inheritance (Provision for Family and Dependants) Act 1975 can be revisited.
If you would like to discuss what happens if you find a Will after probate has already been granted then please contact our contentious probate team on 01271 372128 or send an email with brief details to [email protected]
