Gary Rycroft: Article from This is Money

My late stepfather’s will mysteriously ‘disappeared’ – along with my inheritance – now I’ve found a copy but my stepbrother is ignoring me

By Tanya Jefferies for Thisismoney.co.uk 5 January 2021

My stepfather showed me his will a few years ago. It showed that I was joint beneficiary and executor with his son.

The will was kept in my stepfather’s safe (he gave us both the code) in his flat that he rented from his son.

The estate at that time was well over £100,000. My mother passed away before my stepfather, and her half had passed to him.

Unsurprisingly, the will disappeared from the safe when my stepfather passed away some time later, and my stepbrother applied for letters of administration on the basis there was no will.

He then declared the value of the estate was just a few tens of thousands of pounds.
Earlier this year I found an identical will to the ‘disposed of’ will dated several decades ago. It is a valid will.

Why is there no protection in law when there has been probate fraud? I spent £2,000 on solicitors fees advising my estranged brother of the will. He chose to ignore all correspondence.

I contacted the registrar to say fraud had occurred. They contacted my stepbrother to request return of letters of administration. They contacted me to say he had ignored them.

I advised his solicitor, who also ignored any requests.

I can’t get probate which would prove misappropriation of over £100,000. Have you advice or suggestions?

Tanya Jefferies, of This is Money, replies:

This is a terrible position to find yourself in after the death of your stepfather, who by your account tried to do the right thing by you.

We passed your question to an experienced lawyer, who commends what you have done so far and suggests a way forward to ensure your stepfather’s, and presumably your mother’s, last wishes are adhered to in terms of your inheritance.

Gary Rycroft, partner with Joseph A. Jones & Co Solicitors, replies: 

I am sorry to read of your situation, which shows up some loopholes in the law with regard to wills and applying for the legal authority to deal with someone’s estate after they have died.

This is a process known as obtaining a ‘grant of representation’ or a ‘grant of probate’, if there is a valid will, or a ‘grant of letters of administration’, in other circumstances.

It seems your stepbrother is cynically trying to exploit this system in order to grab the whole of the estate of your late stepfather (his own father) for himself.

This is on the basis that if there is no valid will, legal rules called the ‘intestacy rules’ dictate what should happen to assets on death, and under those rules natural and adopted children are recognised, but not stepchildren.

I hope some of the comments I make here will help you stop your stepbrother from getting away with it. 

Knowing that a will existed gives you an advantage

It has been crucial to this situation that your stepfather showed you his will after your mother died.

If he had not, you would be none the wiser as to what your stepbrother is now attempting.

It is not a legal requirement, but I think it’s a good idea for a person making a will to show a copy of it to their executors and to let them know where the original will is to be stored.

Solicitors who prepare wills usually offer to store them for no charge.

Wills are inherently confidential, which is why there has never been a national compulsory wills register in the UK, available to be searched by third parties after death.

For anyone reading this who does not want to disclose the content of their will to anyone apart from their solicitor, that is your choice to be respected.

However, I urge you to take steps to ensure that your named executors know where to find your will on death and ensure it is held somewhere neutral and secure, so that anyone with bad intent may not dispose of it and in so doing thwart your wishes. 

What action should you take now?

I now turn to what can be done to try to pull round your situation and ensure that the wishes of your mother and stepfather, as you know and understand them to be, are respected.

The good news is that you appear to have already had some further good luck, in that as well as knowing about the ‘missing’ will you have now found a copy you say is ‘valid’, and you have gone some way in stopping your stepbrother in his tracks.

You just need to finish off what you have so ably started.

You say you have informed the Probate Registrar about the situation. If you have not done already, you should make a formal application to the Probate Registry to set aside the ‘grant of letters of administration’ issued to your stepbrother on the basis your stepfather died intestate.

Once the said grant is revoked, he will no longer have the legal authority to deal with the estate.

You should inform your stepbrother’s solicitors of this, so it may not be argued later either that they had no chance to object, or that they were not informed.

At the same time, you should apply for a ‘grant of probate’ in respect of the will you have found, which you believe to be the true valid last will of your stepfather.

You mention your stepbrother is named as an executor alongside you. If he declines to co-operate (which is very likely) a simultaneous application may be made to the Probate Registry for the grant to be issued without him.

But you must address this issue of him being named as an executor and not ignore it.

This is a niche area of law and specialist legal advice from a suitably experienced solicitor would be helpful.

You should seek this advice in your role as executor, as it would then be reasonable for the cost to be borne by your stepfather’s estate.

Once you have the grant of probate you can approach the asset holders and seek to gain control of the assets in the estate.

Executors should always keep estate assets completely separate form their own. So, you will need an executors’ account at a bank, or if you use a solicitor, their client account may be used for this purpose. 

What about tracking down your inheritance

Hanging over this situation is the mystery of the value of the estate as known to you being much higher than the value declared by your stepbrother when he sought control of the estate.

This raises concerns about financial abuse either of your stepfather whilst he was alive, or after death by way of your stepbrother gaining access to assets without the grant of representation.

Twenty years ago, when I was a bright-eyed newly-qualified solicitor, it was very hard to obtain more than a few hundred pounds from a bank without a grant.

Nowadays many of the High Street banks and building societies will release up to £50,000 to anyone who appears to be a credible person.

Your stepbrother turning up with a death certificate for his dad and ID for himself may have enabled him to pocket cash which under the will should be rightfully split between you.

If he has done so, he is likely to have committed a criminal fraud under the Fraud Act 2006, section 4 (fraud by abuse of position). 

This is something you will have to report to the police yourself if it becomes necessary.

To crack this case, you will need some technical legal expertise to set aside the erroneous grant of letters of administration and obtain a fresh grant of probate, which will cost you some more in fees.

After that, you will need to turn detective in order to track down and trace the funds which you think should be in the estate. I wish you well. 

How can others guard again children and stepchildren falling out over their inheritance?

Hindsight is often the best sight, but one straightforward step which your mother and stepfather could have taken to protect the inheritance of their respective children is to have made what are sometimes called ‘trust wills’.

Here what are known as ‘life interest’ or ‘property trust’ wills allow for spouses to benefit from assets during their lifetime, but after their death the assets held in trust pass on direct to the named default beneficiaries, who are usually the children. https://i.dailymail.co.uk/tim/2020/06/signup-300×250.html

If your mother and stepfather had done this, the scope for mischief which your stepbrother is now seeking to exploit would be significantly curtailed.

The situation also makes me reflect that whilst some people are not keen because of the professional fees involved, your mother and stepfather appointing a professional solicitor executor to act alongside family members and to deal with the administration of the estate would have mitigated much of what has happened.

An estate of the size you believe your stepfather’s was worth may cost around £3,000 including VAT to deal with, but in the scheme of things that would be a veritable bargain for peace of mind and ensuring fairness and justice all round.