Discovery of a lost will

Generally speaking, if the probate application has not yet been started and a will is found, the simple solution is to make an application for probate according to the terms of the recently found will. The discovery of a will further down the line - for example, when probate has already been obtained or the deceased’s estate has already been distributed - raises more difficult questions.

For example, a couple of years after the death, when clearing out the deceased’s paperwork and other belongings, the relatives may discover that the deceased left a will or left a more recent version of their will.

What if the will is discovered after the estate has been distributed?

A will may be discovered by relatives after the estate has already been distributed. This could lead to a variety of claims against the personal representatives for mistakenly distributing the estate.

For example, if the personal representative:

  • fails to distribute an estate in accordance with the will or the intestacy rules; or
  • has paid money to someone who purported to, but did not in fact, have any entitlement to the estate assets,

this would mean that the personal representative would have wrongly distributed the estate and may be liable for breach of their duties. This could lead to a claim by someone who previously didn’t know they were a beneficiary

What is the time limit for making a claim?

If a claim is being brought against the personal representatives by a non-beneficiary (someone who is not entitled to an interest in the estate originally or in the newly discovered will), it will need to be done within six years from the date of distribution. 

However, if a claim is made by a beneficiary (someone who has an interest in the estate originally or in the discovered will), this can be done up to twelve years from when they become entitled to the interest. 

Unfortunately, establishing when this entitlement starts isn’t straightforward and can become more problematic in cases where a will is discovered late. For this reason, especially, and in all claims that might be brought against a personal representative, you should take specialist professional advice.

In general, rights under the intestacy rules and for residuary beneficiaries commence when the personal representatives have paid all costs, expenses and liabilities of the estate and have paid out any specific or cash gifts. If you are entitled to a specific or cash gift, your entitlement is likely to begin once all debts of the estate have been paid.

Defence for personal representatives

If a personal representative pays out a cash gift (or other legacy) which appears in the original will but not in the will discovered at a later date, the personal representatives may be protected from liability. The court has discretion to totally or partially relieve them of personal responsibility for wrongly distributing an estate, provided the court is satisfied that the personal representatives:

  • have acted honestly;
  • have acted reasonably; and
  • should be excused for failing to get directions from the court in the circumstances. 

However, the recipient of the cash gift (who is not entitled to the legacy under the new will) may be liable for the full sum. It would be advisable to take specialist advice in this situation.

Fraud

Sadly, there are some cases in which the wishes of the deceased are fraudulently bypassed by people who are unhappy with the likely distribution of the estate. This might take the form of producing an invalid subsequent will, or destroying or concealing a valid one.

If a beneficiary wishes to bring a claim against a personal representative for fraud or fraudulent breach of trust, there is no time limit for making a claim. Such a claim may be made if, for example, a potential beneficiary believes that through some fraud they have been deprived of an entitlement.