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Where can I obtain a copy of a Will if it hasn't gone to Probate?


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My parent died 5 years ago and a sibling acted as Executor.

 

I have never seen the Will (despite requests) and the Probate Office has no record which indicates it did not go to Probate

even though there was property and effects involved which have since been distributed.

I thought I was also named as an Executor (along with a third sibling) but, of course, since I haven't seen the Will I have no way of knowing for sure.

 

I have contacted the solicitors who, as far as I know, dealt with the Will and they say they were not asked to do the Probate

and do not know if any subsequent Wills were made but if I wanted a copy of the Will they do hold I would need a copy of the Death Certificate

and the permission of the other Executors, the latter being the problem due to lack of cooperation.

 

This being the case, plus the apparent lack of Probate - meaning the Will is therefore not in the public domain - is there any other way I can obtain a copy?

 

I would like to be certain the assets were disposed of in accordance with the wishes of the deceased as I have reason to believe there may be some discrepancy.

I have discovered the deceased made several Wills before death (while in the care of the Executor sibling),

two in the same month, and the property has not gone to the person the deceased and their spouse (who died first) always wished it to (which was not me, by the way).

 

How can one be certain it is indeed the very last Will & Testament that's been acted upon by an Executor - or that it's been carried out properly?

If Probate has not been granted, can anyone who has a Will of a deceased person obtain Probate

- in other words, is it the first person to get there, so to speak?

 

Can someone dispose of property and/or effects without Probate?

Are beneficiaries entitled to see the Will?

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My parent died 5 years ago and a sibling acted as Executor.

 

I have never seen the Will (despite requests) and the Probate Office has no record which indicates it did not go to Probate

even though there was property and effects involved which have since been distributed.

I thought I was also named as an Executor (along with a third sibling) but, of course, since I haven't seen the Will I have no way of knowing for sure.

 

I have contacted the solicitors who, as far as I know, dealt with the Will and they say they were not asked to do the Probate

and do not know if any subsequent Wills were made but if I wanted a copy of the Will they do hold I would need a copy of the Death Certificate

and the permission of the other Executors, the latter being the problem due to lack of cooperation.

 

This being the case, plus the apparent lack of Probate - meaning the Will is therefore not in the public domain - is there any other way I can obtain a copy?

 

I would like to be certain the assets were disposed of in accordance with the wishes of the deceased as I have reason to believe there may be some discrepancy.

I have discovered the deceased made several Wills before death (while in the care of the Executor sibling),

two in the same month, and the property has not gone to the person the deceased and their spouse (who died first) always wished it to (which was not me, by the way).

 

How can one be certain it is indeed the very last Will & Testament that's been acted upon by an Executor - or that it's been carried out properly?

If Probate has not been granted, can anyone who has a Will of a deceased person obtain Probate

- in other words, is it the first person to get there, so to speak?

 

Can someone dispose of property and/or effects without Probate?

Are beneficiaries entitled to see the Will?

 

Good morning faintheart

 

You should send a pre-action disclosure letter to the solicitors who took instructions and prepared the Will - see CPR Practice Direction - Pre-Action Conduct, the ACTAPS Code and the Court of Appeal Judgement handed down by Brandon L.J. in Larke v Nugus.

 

Further, also send the request for disclosure to the other Executor(s).

 

If there is no Will on public record then your parent's estate is most likely intestate and therefore the Executor(s) would of obtained grant of probate by way of letters of administration. Without probate being granted your parent's estate cannot be disposed of.

 

As you are a child of the deceased who has died intestate then you would be a beneficiary of the estate in accordance with the laws of intestatcy - succession, therefore you should be able to obtain the information you seek.

 

Read up on the above case law and the CPR Practice Direction and the ACTAPS Code, follow the procdures involved and if the information is not forthcomming then you will need to bring an action in the Chancery Division of the High Court.

 

I hope that will help you.

 

Kind regards

 

The Mould

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  • 2 weeks later...

Thank you Mould, that's very helpful. Could I ask, what is a 'pre-action disclosure letter' and what does it mean? Would I need to have a solicitor send this 'pre-action disclosure letter' or is it something I can do myself? How should I word such a letter? Is there any sort of template letter I could access anywhere? I have googled 'CPR Practice Direction - Pre-Action Conduct' but I'm afraid I don't really understand it. (I see Mould is going to be busy for the next few months so if anyone else could help, I'd be grateful).

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I know there was a Will (and therefore, no intestacy)

- many, actually, towards the end; presumably re-written (by a bedridden and rather vulnerable testatrix) until it said what was required by the Executor/carer. The property and effects have already been distributed by the Executor - is this actually legal without Probate? Could this, otherwise, be fraud or theft?

 

I was told (not sure if this is so) that if a share of a property was simply transferred from one beneficiary to another, then Probate isn't necessarily required - in this case, one share of the property has been sold for money by one beneficiary to another.

Is this legal without Probate?

 

 

Is Probate absolutely required in law?

 

 

Surely there is some sort of official body that oversees the proper carrying out of Wills, 'Probated' or not? Otherwise, anyone could say they were the Executor and do what they pleased. I, apparently, can't even get hold of a copy of the Will without jumping through, (I suspect, expensive) legal hoops.

 

 

I was told, by the Testatrix, I was to be one of the Executors, but I can't check on this as I haven't been allowed to see the Will.

 

 

How can one be sure that the final Last Will has been the one acted upon, if there was more than one Will made - as in this case where there seems to have been several?

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  • 5 years later...

Hi,

 

Quite suprised that this hasn't been answered. If not a probate matter, the Will would only be viewed and evidenced through discovery or being shared by whomever has it. Often, these matters require probate, so it may later be publicly available. If the matter went through probate and there was a proved will lodged, it can't be hidden by law. Digging up on google, the following links allow ordering of wills and probate records:

 

I have used a company called [removed] (can't post links but Google it) and they have supplied without any issues

 

Hope that helps others.

 

CJ

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