A recent English case has warned of the perils of not keeping your Will with your Solicitors Firm as the failure of a family member to locate the Will of a recently deceased woman caused a dispute between the people who were entitled to inherit under the Will and a “belligerent, wholly cavalier and reckless” TV heir hunter who ignored the existence of the Will and tried to take a 40% cut of an estate worth around £630,000.
In 2009, widow Mrs Tessa Amstell made a Will naming her niece as Executrix and her nephew as the main beneficiary of her estate. She died in 2011 and at the time of her death, her niece did not immediately apply for Probate (the equivalent of Confirmation in England) as she had misplaced the original signed Will. She knew of its existence though, as did the main beneficiary.
In 2016, Andrew Fraser, of the Firm Fraser & Fraser, previously featured on the BBC1 television show Heir Hunters, learned of the seemingly abandoned house formerly owned by Mrs Amstell and set about trying to find her distant relatives who would have been entitled to a share of her estate if she had died intestate (without leaving a Will). Mr Fraser was informed by both the Executrix and main beneficiary that there was, in fact, a valid Will and that Mrs Amstell had not died intestate. Despite this, Mr Fraser decided to continue on and ignore the Will as the judge later ruled, he was “primarily focused on his financial gain”. If he had acknowledged the existence of the Will, his services would not be required and he would not receive his fee.
Despite being told of the existence of the missing Will, Mr Fraser applied to take control of Mrs Amstell’s estate and carried on his administration “with gusto”. He failed to advise anyone of the existence of the Will and beneficiary’s potential entitlement in actions which the judge called “materially misleading”. Mr Fraser tried to sell Mrs Amstell’s former home after changing the locks and clearing the contents, which may or may not have included the Original Will, as noted by the judge. When a copy of the Will was found, Mr Fraser finally agreed to stop the house being auctioned off, days before it was due to be sold, as the main beneficiary had applied for a court injunction to force Mr Fraser to do so. However, seemingly determined to prove an intestacy so as to justify his fees, Mr Fraser then embarked on 12 month trawl through Mrs Amstell’s medical records to try to find evidence that she had lost mental capacity before making her Will. Judge Nigel Gerard called this “pointless” and said it was simply an attempt to “play the game and squeeze” her rightful heir for a year after the house sale was blocked.
Finally, Mr Fraser went to court to attempt to have the rightful heirs pay his £134,000 heir-hunting costs, but the judge ruled that his decision not to disclose the existence of the Will and the potential heir was a “conscious and deliberate decision, which was unjustified in the circumstances. Mr Fraser treated this as a commercial venture and…acted in a belligerent and provocative manner which appears to be intended to run up costs and bring pressure to bear on (the beneficiary) to withdrawn or settle the claim. There was a specific and deliberate intention to run this litigation as disproportionately, obstructively and expensively as possible. ” Judge Gerald ordered Mr Fraser to pay the entire costs of the dispute, a total bill of over £250,000. The Judge commented further that Mr Fraser should never have been granted letters of administration over the estate and that his investigations into whether the 2009 Will was valid had been launched “on no factual basis at all”.
Heir hunters find relatives of people who have died without leaving a Will and in addition to matching the relatives to the unclaimed assets, they take a percentage of the estate as their fee. Whilst this can provide a valuable service in situations where no Will was made, Mr Fraser appears to have acted in his own commercial interests rather than those of the family in ignoring the valid Will that he was made aware of. The judge in this case commented “Heir hunters do serve a valuable service because there are cases where people disappear from view as a beneficiary”. However, none of the above would have occurred had the Will been lodged with a firm of Solicitors as it could have been located quickly and probate applied for in a timeous manner following Mrs Amstell’s death.
If you have an original Will at home, you may wish to consider passing it into your Solicitors for safe-keeping as well as telling your Executors which firm is holding your Will. You should also regularly review your Will, particularly after any change of circumstances, to ensure it reflects your current wishes.
Blog by Shona Geddes, Solicitor
