Losing the Will
This short article provides practical advice about when a testator’s will cannot be found and some steps that should be taken to locate the will.
A Will does not take effect until after death and, generally speaking, it can be changed or revoked at any point during the testator’s lifetime. A Will can be revoked by the preparation of a new Will stating that the old Will is revoked or it could be destroyed by the testator. After the death of the testator, it might be necessary for those close to the deceased to undertake a search for a Will.
Sometimes the original Will cannot be found or only a copy can be produced. In these circumstances the personal representatives are placed in a difficult position. The starting point is that the original Will must be provided with the application for probate (as a copy will not normally be accepted by the Probate Registry (subject to some exceptions). It is therefore essential that the deceased’s original Will is located but this is not always straight forward if the deceased had not discussed the Will with the personal representative prior to their death.
The personal representative should conduct a thorough search of the deceased’s papers to try and locate the original Will. This would normally include searching the deceased’s own files and documents and making enquiries at local solicitors, particularly solicitors who dealt with the deceased during their lifetime.
The Will may have been deposited with a national Will registration company although the use of those companies is not compulsory and a check with one of those companies cannot be treated as an exhaustive search.
If a Will which was last known to be in the deceased’s possession cannot be found upon their death it raises the question of whether it has been lost or destroyed. If the Will cannot be found there is a presumption it was revoked by destruction by the testator. However, it may be possible to make an application to court for evidence of the Will’s contents to be accepted in place of the original Will.
In some very limited circumstances, evidence of the testator’s intentions can be put forward in place of the Will to show that it had not been intentionally destroyed. An example may be where the Will has been destroyed in a property fire or a flood and there is evidence remaining of the Will’s contents, such as a photocopy or discussions with the deceased. In these limited circumstances this may be evidence that the Will was not intentionally destroyed. The onus falls upon those seeking to benefit under the lost Will to prove that the testator did not intend to revoke it.
Steps that should be taken
If the original Will cannot be located steps would need to be taken to find out who was storing the Will and where it was last seen. It may be that the Will was stored with a firm of solicitors who prepared it or, it could have been kept by the deceased in their own personal documents.
It is crucial to identify where the Will was last seen. If the Will was last seen with the testator a presumption Will arise that the testator destroyed the Will if it can no longer be found. It will then be necessary to consider if evidence is available to rebut the legal presumption of revocation by destruction. If no previous Will can be found, then the estate would pass under the intestacy provisions which may not reflect the testator’s wishes stated in an earlier Will. Revoking a Will does not have the consequence of reviving a previous Will.
If only a copy Will can be found then an application can be made to admit the copy Will to probate, but the Probate Registry would expect a detailed statement outlining how the original Will came to be lost and exactly what searches have been undertaken to find it. Significantly, the Probate Registry also need to know the details of anyone who would otherwise stand to benefit from the estate if the copy Will is not proven and the deceased has been held to have died intestate (without a valid Will).
Storing a Will
Although there is no obligation, it is sensible to ensure your Will is kept in a secure location that is known to the executors. If the Will is professionally prepared by solicitors, they would usually provide the testator with a copy of the Will and the original can be held in safe storage. This service is usually provided at no extra cost. It is advisable to keep a copy of the Will together with the letter enclosing the Will from the solicitors amongst your papers so that anyone searching for the Will can easily locate it. It is also advisable to inform your executors where your will is held.
Top five tips
- If you cannot locate the original Will then a search of the deceased’s papers should be undertaken. Questions should be asked of family members and close friends to establish where the original Will may have been stored.
- A search of the deceased’s papers would hopefully locate which solicitors may have dealt with the testator in the past. A letter to those solicitors should be drafted advising them of the testator’s death and asking if they retain a copy of the deceased’s original Will.
- If a copy of the original Will can still not be found then a national Will registration company should be contacted. These companies will make enquiries of a number of local solicitors to see if they retain a copy of the deceased’s Will.
- If a national Will registration company cannot locate the Will then final checks should also be conducted with the deceased’s bank. Many banks offer a Will writing service and they may retain their own copies of the Will or have details of the solicitor that may have been involved in the preparation of a Will as an agent at the bank.
- Finally, if all of these checks prove to be fruitless and the original Will can still not be found then a copy of a Will can be submitted to probate (in specific circumstances) but this is often an option of last resort. In exceptional circumstances details of a Will may also be admitted to probate without a copy being produced but legal advice should be sought on this option.
If you need advice or support on any matter relating to Wills or contentious probate our experienced team are happy to assist.
If you would like further guidance regarding wills, please contact our wills solicitors.