Our Client 

Our client was a co-executor in his grandfather John’s Will, alongside his grandfather’s solicitor. John had passed away 17 years ago, and his estate was yet to be administered.  

In his Will, John bequeathed his share of his home to his wife Jane, who he had held the property with as tenants in common.  

Our client incorrectly believed that John’s share of the home had transferred automatically to Jane when he passed. But when property is owned as tenants in common (as opposed to joint tenants) the share owned by the deceased does not automatically transfer to the other owner of the property when they pass.  

The recent passing of Jane meant her estate, which dealt with the property left to her by John, couldn’t be administered until John’s estate was administered and ownership of their home was solely in her name.  

The Challenge 

To get probate for John’s estate, we needed to explain to the court why there was a delay of 17 years between the time of John’s passing and our client administering his Estate.  

Additionally, the Will itself was not executed correctly. Because of the length of time since the Will had been signed, the witnesses were not able to reliably remember the day of signing in order to speak to its validity. 

A final challenge was posed in that the co-executor to our client, the solicitor who drafted the Will, no longer wanted to act in his role as an executor.  

The Solution  

In order to explain the delay in administration to the court, we drafted an affidavit on behalf of our client explaining that they were unaware of their duties as executor, and that our client incorrectly believed their John’s home had transferred automatically to Jane. 

We also pursued the co-executor and obtained a renunciation of probate, excusing the co-executor from his duties. 

To verify the validity of the Will without the witnesses, we sought the solicitor who drafted it, and their colleagues, who were able to speak to the Will’s reliability. 

The Win 

We successfully obtained probate of John’s estate and our client finalised their duties as the sole executor. We were also then able to help our client have John’s home transferred completely to Jane’s estate. 

By obtaining the affidavits, we avoided the need to apply for Letters of Administration. Letters of Administration are needed when a deceased person has not made a Will or when a person’s Will is not valid. The process is much lengthier than probate, and doing so would have drawn out the process for both our client, and the executors and beneficiaries of Jane’s estate.  

The Lessons 

• Avoid appointing your solicitor as your executor. It’s best to appoint executors who have knowledge of your estate and will be willing to administer your estate when the time comes. (Not appointing the drafting solicitor will also let your executors shop around for their own preferred solicitor to help them apply for probate).  
• Be informed about how you hold your assets to avoid unexpected complications for your executors. 
• Review your Will annually. Annual Will reviews will help to avoid any errors in drafting or signing, and ensure that your wishes remain current.  
• Make sure that your Will is being drafted by a competent and specialised Wills & Estates solicitor. Though many firms draft Wills, estate law is a niche area which requires expertise to be done correctly. A competent Wills & Estates solicitor would have been able to avoid the errors resulting in the situation our client found themselves in.