Your MoneyQ&A

Tracking down a retired solicitor over query with a will

Probate Office query has arisen over validity of will simply because it was not initialled on every page

Sorting out queries about a will when the solicitor who drew it up has retired can be messy. Photograph: iStock

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Dominic Coyle
Sun Mar 3 2024 - 11:14

Our widowed mother passed away recently and left a solicitor-drafted will dividing her assets equally among her children, with some minor bequests to her numerous grandchildren. In the event of one of her children predeceasing her, the will allowed that share to pass to that child’s children.

As her estate was not large or complicated and only involved money in her bank accounts, the family decided to apply for a personal probate application. The will was accepted by the Probate office as the original will. However, the will ran to several pages and was only signed and witnessed on the final page. Because of this, we now have to get an affidavit from one of the witnesses to prove that this is a true and full will as presented.

The problem is that the solicitor has closed their practice and we’re finding it difficult to locate either one of the witnesses. If we are unable to do so, what will happen to the estate?

If we were to appoint a solicitor now, would the same issue with the lack of signatures still apply? To complicate matters somewhat, one sibling did predecease our mother.

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Ms E.M.

Applying for probate on a personal application is perfectly understandable in cases like yours where your mother’s estate was, as you say, neither large nor complicated. However, it does very much rely on the process going smoothly. When something goes awry, things can get very stressful for whomever it is that is managing the process.

And that’s exactly where you find yourself.

Drawing up a will – especially one as apparently uncomplicated as your mother’s – has to be about the most “everyday” task a solicitor will undertake. It is literally the bread and butter of legal practices up and down the State.

And there is absolutely zero excuse for the solicitor to mess it up, especially on something as basic as how it is signed and witnessed.

Having said that, I’m not sure the solicitor has done anything wrong in this case.

When it comes to signatures, all the guidance on drawing up wills in Ireland that I can find, including on the Law Society’s own website, says that the requirement is for the will to be signed and witnessed at the end of the document.

In fact, all agree that any instructions appearing below a signature are deemed invalid.

This is all expressly covered in section 78, in Part 7 of the Succession Act of 1965 as amended.

Now, I understand it is sometimes advised to initial each page of a multi-page will, but that is neither mandatory nor legally required.

This leaves me somewhat confused about the requirement from the Probate Office for you to track down the solicitor who drew up this will – or the witnesses to the will – to vouch for it in the absence of such confirmation on each page of the document. Unless there is some other query in relation to the will.

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Certainly if it were not an original copy of the will, the Probate Office, through the court, might well require the solicitor who drew it up to swear that it is authentic. However, you state that the Probate Office is happy in this case that the will submitted is the original so that should not apply.

So it is all a bit of a puzzle. And it is clearly not helped by the fact that the solicitor who drew up this will is no longer practising.

It is common practice when a solicitor is closing their practice to return any documentation to the client. They may notify clients that the default for those who do not expressly want their documents or files returned to them is that they will pass to another local firm that is taking on the business or to a solicitor or firm buying the practice.

If you are not familiar with whom that might be, your best first point of contact is the Law Society. It has a records section which, the society tells me, retains all records relating to firm closures and mergers.

The idea here is that the firm that took over the business should have contact details for the solicitor if they are still alive to track down these witnesses – likely employees of the firm. Alternatively, they may well have taken on those staff themselves or otherwise be aware who they are and how to contact them.

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The Law Society says you should email them at records@lawsociety.ie. I would include any details you have regarding the now-retired solicitor, practice name and address and, indeed, even the names of the witnesses if clear to you.

As the Law Society is always keen to stress, it does not provide legal advice so if anything arises beyond tracking down which firm now handles the business of your mum’s former solicitor, you will need to get that advice elsewhere.

Appointing a new solicitor yourself will not help as they would not be in a position to confirm a will they had nothing to do with drawing up as authentic. The same issue with the apparent lack of signatures (or initialling) would apply.

The good news is that your mum did appear to have the foresight to deal with the possibility of one of her children predeceasing her so that should not present any issues ... once you can get over this Probate Office demand for the witnesses.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice

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