My father's will was kept secret

By THIS IS MONEY
Updated: 09:25 EST, 11 September 2009

My sister and I have discovered that we were beneficiaries in my father's will that was kept secret after he died five years ago. He had remarried and his second wife has now died leaving everything to her two sons from her first marriage.

It has emerged that solicitors are holding my father's will and I was named as joint executor with my stepmother. I was never informed about this and it came as a shock. On reading his will he clearly leaves everything in equal shares to both his stepsons and his daughters.

Would the solicitors have had a duty to inform me as executor about the existence of the will when my father died?

His second wife has revoked her half of what was obviously a pair of mirror wills as the date on her will is two years after my father's death. This now clearly gives an uneven distribution of the estate. Would I have a case for contesting this? Penny, Wrexham, North Wales

Christopher McNeill, solicitor with Anthony Gold and expert in wills, trusts and probate, replies: The first point is that if your father has held joint property with your stepmother that could have passed to her automatically anyway, irrespective of anything in his will.

It is unlikely this is so in the case of a second marriage – and certainly the solicitors should have advised against this, but this needs to be checked.

There certainly seems to have been a slip up when your father died and the solicitors should have informed the executors they held a will, but failed to do so. If proceedings are necessary to recover assets from your stepmother's estate the costs of those proceedings may have to be met by the solicitors.

Depending on the outcome, they may also bear the cost of any consequential loss such as the interest and capital growth accruing to those assets during your stepmother's lifetime.

The will may have been a long time surfacing but you, as the last surviving executor, should still prove this and it will then be binding in the distribution of your father's estate. That will mean recovering assets from your stepmother's estate, as above, since the inference is that everything has been treated as though it passed to her.

If the stepmother was not mentioned in the will, which seems to be the case, she herself would have had an Inheritance Act claim but that is a personal claim which cannot be pursued by her own beneficiaries after her death; again your father's will should govern the distribution of his assets.

You should consider whether inheritance tax would have been payable on your father's death and this will now be due together with interest since the date tax became payable. This is unlikely, however, since if everything passed to your stepmother as though on intestacy then unless your father's personal possessions were of exceptional value the estate could not have exceeded the statutory legacy in value and this would have been less than the nil rate band at the time.

It cannot be assumed that your stepmother had made a will in the same terms as your father, but if her estate is to be disputed then in those proceedings you could call for a copy of any earlier will and of the instructions file the solicitors opened at the time.

In this case you are saying that two wills were made together so the solicitors can, of course, be asked if they have not only your father's own will but also their original instructions file and that should then confirm the position.

Whether the solicitors still hold that file depends on their own practice. Solicitors vary widely in how long they will hold their files once the Law Society's recommended storage period has expired.

Even then, it is not to be assumed that 'mirror' wills are binding on the survivor and prevent him or her making another will. There are some fairly recent cases on the point but there has been no further development of the doctrine that two wills made together, with the same ultimate beneficiaries, effectively create a trust allowing those beneficiaries to enforce their claims under the original wills.

The correct course of action is to prove the original will anyway and then look at the actual instructions given for the two original wills – if indeed there were two.

After all, if the wills were the same why were neither of your stepbrothers named as executor with you and your stepmother? If not, then your stepmother was free to leave her estate to her own children and it is only your father's own assets that need to be redistributed.