The lost Wills of Lloyds could mean wrong beneficiaries

18/11/2019

Lloyds Bank have recently ‘found’ 9,000 Wills in storage, meaning that many of their customers’ estates may have been distributed according to previous, out of date, versions. We look out how you can ensure that you executors know which Will to use when you pass away – and where to find it.

The tale of the missing Wills ​

It has recently been reported that LLoyds Bank have found some 9,000 Wills in their ‘Safe Custody’ service. The professional body STEP (Society of Trust and Estate Practitioners) have observed that this discovery potentially creates a difficult situation for families and executors who may have administered a deceased’s estate using what turned out to be an out of date will, not knowing that a later one was stored at Lloyds. The result is that some Lloyds customers may have distributed a deceased’s estate to the wrong beneficiaries.

Lloyds have confirmed that they will compensate those families affected, will cover families’ legal costs for rectifying the position, and will not seek to recover assets or costs from the original, incorrect recipients.

The risk with storing a Will with a bank is that the deceased may not retain a copy of the Will amongst their papers. As such, a deceased’s family may have no way of knowing about its existence. Solicitors (unlike some organisations) routinely supply a client with a copy of their signed Will which indicates where the original is stored – this will typically be in a solicitors’ strong room. 

What can you do if the wrong Will has been followed?

The executors named in the newly discovered Will should apply to revoke the original grant of representation and take out a new grant in their name. Any assets yet to be distributed will pass to the new executors who will be able to distribute them in accordance with the new Will. Executors should seek legal advice in relation to the scenario where any assets have already been (wrongly) distributed.

Options for the disappointed Beneficiaries:

If both the old and new beneficiaries are known to each other, then negotiations should be started between all the parties to try and reach a settled agreement.

If this is not possible, the new beneficiaries could consider an action against the executors of the incorrect Will. This is unlikely to be successful if the original executors acted in good faith (i.e. they had no knowledge of the missing will and have otherwise administered the estate in accordance with the law). In these circumstances they will most likely be protected by law. Similarly, institutions that have made payments to the original executors on the basis of the original grant of representation are protected in the same way.

An action against the organisation that withheld the existence of the Will could also be considered. If successful, this could result in a payment of compensation to the beneficiaries of the new Will. This is possible if there is an element of negligence in the withholding or non-discovery of the Will as with Lloyds, but if a family member made a mistake by simply following the wrong Will then this recourse is unavailable.

There is then the option of a claim against the beneficiary that mistakenly received the assets under the first Will. There are two types of claim in this catergory. One is a personal claim against the wrong beneficiary and is only available if you can’t recover the funds in another way.It is also subject to a 12-year limitation period.Therefore, if more than 12 years have passed between the wrong will being followed and the discovery of the new Will, this type of claim is not possible.

The second type of claim is a claim against the asset itself which was wrongly distributed. However, if the beneficiary has already spent the money the claim could well be defeated.

Both claims rely on common law principles rather than legislation so will be difficult to follow and will turn on the discretion of the court.

Keeping your Will safe and secure

Make sure that you have told your family and executors where your will is stored and keep a copy at home.

Pinney Talfourd routinely supply clients with a copy of their signed Will. We also register Wills with Certainty (the only National Wills database) so that there is additional proof of the existence and whereabouts of each Will.

Our Wills Team are happy to help you in making you Will and ensuring it is stored safely and openly to avoid these issues.  

What to do if you have been affected by a missing Will?

If you have been affected by this incident or have experienced a similar situation, our contentious probate department would be happy to assist you in assessing whether there are any claims or remedies available to you as a disappointed beneficiary under a newly discovered Will. ​

More information

Our Private Client Team have been recognised as one of the leading private client departments in the region by Legal 500 UK, and are able to prepare a Will and Lasting Power of Attorney for you that reflects your personal wishes and requirements.

In addition to these services, we also offer related expert estate planning, tax and trust advice.

Contact our Contested Probate Team for a free initial consultation if you need advice on disputing an out of date Will or incorrect estate administration.This article was written by Claire Buttress, Senior Associate in the Private Client Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of November 2019.

18/11/2019

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