Lawyers

When a missing Will emerged after an estate had been settled

Administering an estate is rarely straightforward, particularly where no Will can be found.

The Situation

This case highlights how executry bond cover can provide vital protection when the unexpected happens – even when everyone involved has acted in good faith.

Following the death of an individual in late 2022, their family began the process of administering the estate. Extensive checks were carried out within the deceased’s home to locate a Will, but no documentation was found. Based on the information available at the time, the estate was treated as intestate.

To proceed with estate administration, the court required an executry bond of caution. This type of cover exists to protect beneficiaries and creditors against financial loss caused by an executor’s error, omission or failure to distribute the estate correctly.

The bond was put in place before confirmation was granted, covering the estate up to a defined value. A close family member was formally appointed as executor and took responsibility for administering the estate in line with Scottish succession law.

Estate administration & distribution

Once confirmation had been obtained, the executor moved forward with the administration. The deceased’s main asset was a residential property, which was sold. The proceeds were distributed to the entitled beneficiaries in accordance with the rules of intestacy.

At the time of distribution, there was no indication that a Will existed. The beneficiaries received their inheritance and, as is often the case, the funds were subsequently spent.

From the executor’s perspective, the estate had been handled correctly, transparently and in good faith, based on all the information available at the time.

The unexpected claim

More than a year after the death, and several months after the estate had been fully distributed, two individuals came forward claiming to be beneficiaries under a previously unknown Will.

They produced a copy of a Will dated several years before the death. That Will left modest legacies to them, with the remainder of the estate passing to a registered charity.

By this point, the estate no longer held funds to meet the claim. Without protection in place, the executor could have faced personal financial liability for sums that had already been distributed.

Assessing the risk

Once the claim was notified, it was referred under the executry bond. Legal advice was obtained to assess whether the Will could be challenged.

There were understandable concerns. The original signed Will could not be located, the Will writer was no longer available, and there were unanswered questions about the deceased’s health and circumstances at the time the Will was said to have been made. There were also queries about why the claimants had taken so long to come forward.

However, despite these concerns, legal advice concluded that there was insufficient evidence to successfully challenge the validity of the Will. Continuing to dispute the claim would likely have increased costs and risked a worse outcome.

The outcome

On the advice of solicitors, the claim was settled in line with the terms of the Will.

Payments were made to the named beneficiaries and to the charitable organisation entitled to the residue of the estate. Crucially, these payments were met under the executry bond.

The bond worked exactly as intended:

The executor was protected from personal financial liability
The correct beneficiaries ultimately received their entitlement
The matter was resolved without lengthy litigation

Why this cover matters

This case demonstrates several important lessons for executors and advisers:

Even thorough checks cannot eliminate all risk. A Will can surface long after an estate appears settled.
Acting in good faith is not enough. Executors can still face claims even when they have followed the correct process.
Executry bonds provide real, practical protection. They step in when funds are no longer available and shield executors from personal exposure.

In estate administration, uncertainty is unavoidable. Executry bond cover ensures that when the unexpected happens, executors are not left carrying the financial and legal burden alone – and beneficiaries can still be paid what they are legally entitled to receive.