Nowadays, with advances in technology, many things have been digitised, resulting in much less important paperwork. This is not however the case for wills which are still physical documents. It is therefore essential to know where the will is.
Historically, this was fairly straight forward as many people stored their wills at the offices of the family’s solicitor. Times are changing though and the profession is seeing the majority of people having a specialist area in which they practice, rather than acting generally in a range of matters. Accordingly, people will contact different solicitors depending on their needs and this means family members are not always aware of the existence of a will or the location of it.
This could easily result in a situation where those left behind do not know where the last will is and may therefore mistakenly administer an estate wrongly – whether that is in accordance with an old will that has since been revoked, or in accordance with the intestacy rules, not realising there is a will. After steps have been taken and the estate distributed, either wholly or partly, the true will may be found, perhaps in the back of a cupboard or with a solicitor for safe keeping.
If the situation was created as a result a solicitor’s mistake - for example if they wrongly advising family members they don’t have a will in storage and later discover that they did - then there may be recourse for the recovery of any losses through a professional negligence claim.
That being said, it may be that no solicitors were involved and it was just that the executors did not find the will and the estate has now been wrongly distributed. If this happens, then the executors could find themselves in a difficult position. They will need to take steps to correct the mistake and pass the assets to the true beneficiaries. In many cases, this may not be any different to the terms of the will or it may be easily remedied, though it may not always be so simple. The executors may find themselves embroiled in litigation with the true beneficiaries who have now found they have suffered a loss due to the estate being wrongly distributed.
In order to avoid the above, it is so important that after making a will, the testator ensures the nominated executor is aware of where the will is stored and knows how to access it when the time comes. Conversations like this could help to avoid the situation outlined above which could result in a very costly problem to fix.