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My widowed mother has died leaving a hand written note which she left as her 'Will'.
She mentions no executors, but seeks to divide her estate between myself, her son and only child and my son, her only grandchild. Apart from this there is a bequest of £500 each to two named friends.
She does not state precisely to whom any 'residue'of her estate will go but it is implicit that this will be for the benfit of my son.
She has signed the note at the bottom of the first page and again after a final paragraph on a second page. The signatures are legitimate but slightly different (Initial on one, Full name on the other).
The second page was countersigned by two signatories, recognised as an Uncle and Aunt, obviously with the intention of witnessing but there was no date, address, or 'witness' capacity attributed - merely two signatures.
I have naively submitted this imperfect document with application for Probate. I have made application in my sole name believing the Registrar would grant either sole or joint Letters of Administration to myself and my son.
Instead the Registrar is insisting upon a signed statement from the 'witnesses', one of whom died last week and the remaining widow refuses to co-operate.
There is absolutely no dispute between myself and my son with regard to settling the estate in accordance with mother's wishes, including the bequests but at present we seem to have reached an impasse with the Registrar.
Am I able to start again and withdraw the application and re-apply as though mother had died intestate, which to all intents she had. Or do I have any rights to pursuade the Registrar to grant Letters of Administration without the 'Will'?
I suggest that you and your son arrange a meeting with the Registrar to explain the circumstances in which you find yourselves, bearing in mind that one witness has died and the other is not being co-operative. You cannot withdraw your application without the authoirty of the Registrar, who to be fair, has a duty to enquire whether the Will that has been produced is valid under English law. If the Registrar believes that the Will is ultimately invalid then he will confirm that Probate is denied and an application can be made under the Intestacy Rules.
Answered by:Mark Keenan, Editor
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If someone dies and they are in the process of changing their Will , i.e. they have drawn up a draft but it has not been witnessed or signed, is this Will taken into account or is it considered invalid?
A Will is only valid if it has been executed in accordance with the Wills Act 1837 section 9 (as amended ) in that the Will must:-
(a) be in writing
(b) it is signed by the testator or by some other person by his direction and the testator intended by his signature to give effect to his Will
(c) the signature of the testator is made or acknowledged by the testator before at least two witnesses who are present at the same time
(d) that each witness signs the Will or acknowledges his signature in the presence or the testator.
Answered by:Mark Keenan, Editor
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