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 when probate has already been obtained or the deceased’s estate has already been distributed raises more difficult questions.
What if the Will is discovered after the estate has been distributed?
If this happens it 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
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, it will need to be done within six years from the date of distribution. However, if a claim is made by a beneficiary, this can be done up to twelve years from when they become entitled to the interest.
Establishing when this entitlement starts isn’t straightforward and can become more problematic in cases where a Will is discovered late. 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 start 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 and 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.