Is this willl valid?

[Whodathought]

Hi, my Father has recently gone into a care home & I have just applied for deputyship.
While going through his paperwork I found what appears to be a DIY will that he drew up in 1995, it was signed by 2 witnesses & all appears in order.
I have since found a letter from a bank saying that they witnessed his will being signed in 2012, this must be a replacement will but unfortunately I cannot find it. The bank don't keep it. Searches have been done by the Law Society and no solicitor in the area has it.

Question:- In the absence of the 2012 replacement, is the 1995 will that I found valid?

 

[Canadian Joanne]

I'm not a lawyer but I would think that the bank saying they witnessed a 2012 will would render the 1995 one invalid.

I recommend you contact a lawyer as I'm sure this situation has come up before.

 

[jenniferpa]

I would agree with Joanne. Even if you can't find the second will, if there is evidence of it being created the 1995 would not be valid, as part of making a new will is revoking all previous wills. Even if your father tore up the new will, the old will still remains invalid.

 

[Whodathought]

I'm not a lawyer but I would think that the bank saying they witnessed a 2012 will would render the 1995 one invalid.

I recommend you contact a lawyer as I'm sure this situation has come up before.

That's confirmed what I had thought. Thanks for your reply.

 

[Whodathought]

I would agree with Joanne. Even if you can't find the second will, if there is evidence of it being created the 1995 would not be valid, as part of making a new will is revoking all previous wills. Even if your father tore up the new will, the old will still remains invalid.

That's confirmed what I had thought. Thanks for your reply.

 

[Delphie]

I suspect that the issue of capacity needs to be considered. He's gone into residential care, you're applying for a deputyship which suggest loss of capacity and yet there is a new will somewhere that was made last year.

If it does turn up, fingers crossed there aren't any surprises.

 

[sue38]

I'm not sure that the mere reference to a second will would necessarily revoke the first will. Most wills do contain a provision revoking any previous wills, but I think you would need to prove that this second one did, and that the second will was valid (i.e. that is was properly executed and that you father had the necessary capacity to make a new will).

Is the first will still in existence? If not there is a presumption that it has been revoked by destruction.

I would seek legal advice, and I would also query it further with the bank. Did they draw up the will? If so, do they have a copy of it? Who were the witnesses?

 

[chiggins]

just wondering I'd your dad had capacity to make the will in 2012?