Where there is a will, is there always a way?
By Richard Taylor-Duxbury
When am I entitled to see a will of a loved one and how do I go about obtaining a copy?
We are often contacted by individuals who are anxiously awaiting some information about the contents of a will of a friend or family member who has recently died.
Many times there will be something of sentimental value that has been promised to them and they want to ensure that their loved one’s wishes are correctly carried out by the executors of the estate.
Increasingly we are contacted by family members of the deceased who are concerned about their own future in cases where they were financially dependant on the deceased, or where there is concern that financial provision has not been made for them in the will.
It is important to obtain a copy of the will as soon as possible and there are a number of options available which are explained here.
Searching the registry
Carrying out a search of the registry at probatesearch.service.gov.uk may be all you need to do to access the will. However, wills usually only appear here at some stage after the grant of probate has been issued. You could therefore keep searching the register to see if the will becomes available but this is not ideal if you are wanting to act quickly, for example if you are wanting to apply for the grant of probate yourself.
In addition, it is often not wise to wait until the grant of probate has been issued because you then only have 6 months from the date of the grant of probate being issued to make a claim under the Inheritance (Provision for Family and Dependants) Act. If you don’t come to an agreement with the executors of the estate within these 6 months or if you don’t issue court proceedings within this time frame, then other than in exceptional circumstances, you will be out of time to seek financial dependency.
In some cases the records will never appear on this website, for example some estates do not require a grant of probate to administer the estate.
Asking the executors for the will
If you are named as one of the executors in the will then you have a legal entitlement to see the will upon the death of your loved one. Therefore if another executor is in possession of the will then it should be sent to you.
If you are not named as an executor then you have no legal right to see the will unless you are named as a beneficiary and in which case, it becomes disclosable to you but only after probate has been granted. Given beneficiaries will ultimately be entitled to see the will then executors are often willing to provide you with a copy before the grant of probate has been obtained.
Writing to the solicitors who drafted the will
Contacting the solicitors who drafted the will to ask them to send you a copy of the will may be all that is required. As mentioned above, if you are an executor named in the will then you are entitled to see it and therefore the solicitors should send you a copy.
If you are not an executor named in the will then the solicitors who drafted the will are not able to provide you with a copy of the will as they have a duty of confidentiality to the estate. Having said that, the solicitor can ask the executors for permission to disclose the will to you.
Where the solicitor is an executor of the estate then they are entitled to send you a copy without seeking any permission from elsewhere.
In circumstances where there are no executors and only administrators who are handling the estate, then the solicitors are only able to disclose the will once probate has been granted.
Accordingly, if you are having difficulties obtaining the will from a firm of solicitors this may simply be because they are not legally entitled to send you a copy but further steps can be taken depending on what response you receive, or lack of it, as the case may be.
Larke v Nugus request
The solicitors who drafted the will can be asked to disclose it along with all their papers in connection with the drafting of the will, by making what is known as a Larke v Nugus request.
This is one way of potentially side stepping the restrictions the solicitors have in terms of their obligations of confidentiality mentioned above.
In order to succeed with a Larke v Nugus request, the solicitors (or ultimately the court) have to be satisfied that there is a serious dispute about the validity of the will. A will may not be valid for a number of reasons including a lack of capacity when making the will, undue influence, lack of correct form or fraud.
However, without seeing the will or any of the papers held by the solicitors when they drafted the will, it is not easy to argue that there is a serious dispute about its validity.
A person who is simply dissatisfied or concerned about what they have been left in the will is not entitled to see the will purely on this ground in accordance with a Larke v Nugus request as this will not be considered a serious dispute about the validity of the will. For those wishing to contest the contents of the will (as oppose to whether it is valid or not) it is necessary to consider other options which are discussed below.
If you are not able to raise a serious dispute as to the validity of the will at this stage then you can ask the court for an order that the will is disclosed to you by making what is known as a Pre-action application.
You may consider issuing the application against the executors but without a copy of the will it is difficult to be sure who are named as the executors of the will, making it near impossible to know who to issue court proceedings against. An alternative is to issue the application against the solicitors who drafted the will.
In order to succeed you would have to show that you have reasonable grounds for making the application. For example, if you believe that you are entitled to some or all of the proceeds from the estate, even though this is not what is contained within the will, then the court may grant an order that the will (and supporting paperwork in the case where you issue against the solicitors) should be sent to you. Likewise, if you believe you are named as an executor and have not been told otherwise by the solicitors who drafted the will, then your application may succeed.
Other things to consider
It is necessary to be mindful of the strict short time limits that exist when contesting a will as discussed above. Therefore it is important to ensure that you either prevent a grant of probate being issued without your consent, or you are notified when a grant of probate is issued.
If you are concerned that somebody else who you believe has no legal entitlement, may obtain probate before you are able to do so, or if you simply do not wish for probate to be obtained on the grounds of validity, then you can enter what is known as a caveat at the probate registry. This will prevent anybody obtaining a grant of probate for 6 months without your consent. This period can be extended.
Once this is in place then anybody who wishes to obtain a grant of probate is entitled to apply to remove your caveat and it is then for you to fully explain why this is in place. The probate registry will ultimately decide if your caveat was reasonably entered and whether it should remain in place.
If you are concerned that what you have been left in the will is insufficient and you wish to contest the will, for example you were financially dependant or otherwise believe that you are entitled to more from the estate, then a caveat may not be the correct approach and other options should be considered.
If you are able to obtain a caveat it can be a good negotiating tool to help you obtain a copy of the will because probate cannot be obtained so long as the caveat is in place.
If you are unable to secure a caveat then you can apply to be notified when a grant of probate is issued. This way, you will be aware when the 6 month limitation period (mentioned above) is running and that you must either come to an agreement with the executors of the estate or you must issue court proceedings within 6 months of the grant of probate being issued. A standing search can be extended should a grant of probate not be obtained within the 6 month period covered by the standing search.
Time is often of the essence when it comes to obtaining the will and serious consideration should be given when deciding which route to take to obtain a copy of the will.
Until you have seen sight of the will, it is advisable to stop the grant of probate being obtained by others. Where the circumstances do not permit this to happen, then it is extremely important to be aware when probate is granted due to the strict time limits that apply.
If you are having trouble obtaining a will, or if you wish to contest a will, we would be happy to provide a free initial case assessment to try to assist in ensuring you ultimately receive what is rightly yours.
Please call us on 01743 248148 or email email@example.com should you require any assistance.