My sibling has stolen our late mother’s will. Is this a crime?

Ask for it back one last time and explain that you will instruct a solicitor if they refuse. But this should be a last resort

Our mother died this summer. She deposited her will with a solicitor, having appointed one of my two siblings as executor, and shared her estate equally between the three of us. However the other sibling purloined the original copy of the will from the solicitor by falsely claiming the executor had instructed them to do so. They now refuse to return it.

Some years ago, our parents gave the sibling who is the executor a loan of several thousand pounds and I suspect my other sibling is holding the will hostage until it’s proved that either the loan was paid back, or the role of executor is relinquished. Has a criminal offence been committed? How can we get hold of the will so that we can settle our mother’s debts and share the money?

My condolences about your mother; it’s no time at all since her death and the loss must still be raw. I suspect your father has also died as you didn’t mention him. And I’m also imagining you live in England or Wales – laws may be different in other places.

Such will disputes are unfortunately not uncommon. I’ve read many of them over the years, and it sometimes seems as if the money left behind becomes a substitute for love not received in life.

I consulted Rod Smith, co-chair of the Law Society’s wills and equity committee. His first thought was that the solicitor who gave up the will, with neither proof that the executor had authorised it, nor checking the identity of the person who was collecting it, was remiss. A will is an important, legal document and should be released to the named executor/s.

It’s not clear whether your sibling committed a crime by obtaining the will. It depends what the intent was: if it was to stop someone inheriting, this probably was a crime under the Fraud Act 2006.

But it’s not madly helpful, at this stage, to concentrate on whether a criminal offence has occurred.

Smith suggested you first write to the solicitor to say the will was released to the wrong person and ask what steps were taken to ensure they were acting in accordance with the executor’s wishes. You may also want to put the solicitor on notice that any costs involved in rectifying this mistake will be recovered from him/her.

If your sibling, the one with the will, is not responding to polite requests to return it, you can ask them one last time and explain that, if they don’t, you and your other sibling will instruct a solicitor to issue a subpoena for its return. If it’s not returned then criminal charges can be brought. This isn’t ideal, as I’m not sure what this will do to your relationships, but it may be your last resort.

A signed copy of the will can be obtained from the solicitor by the executor to prove they are the executor, complete the issuing of the subpoena and find out their legal standing, but it’s not a legal document per se.

Ultimately, the sibling holding the will hostage needs to realise that doing so serves no purpose. They can’t act on it as they are not the executor. It’s amazing how immature grownups can be when money is on the table.

But I do wonder if something else is being acted out here. It would have been helpful if your parents had put something in writing about how they expected the loan to be paid back – if at all. It’s important for people to make their wishes known clearly to avoid disputes, not just in making a will, but keeping a record of loans to one child and not the other.

Is there another family member, someone you all respect, who could act as mediator between all of you? Wouldn’t it be tragic if you all fell out over this when it sounds as if there are some very raw, and childlike feelings that need listening to?

Every week Annalisa Barbieri addresses a family-related problem sent in by a reader. If you would like advice from Annalisa on a family matter, please send your problem to ask.annalisa@theguardian.com. Annalisa regrets she cannot enter into personal correspondence. Submissions are subject to our terms and conditions. Comments on this piece are premoderated to ensure the discussion remains on the topics raised by the article. Please be aware that there may be a short delay in comments appearing on the site.

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Annalisa Barbieri

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