Contested Wills and Financial Provision

What happens if the Original Will is lost? – ‘Losing the Will’

Whilst many understand the importance of writing a Will it is often the case that, once executed many are then uncomfortable in discussing the topic with those close to them leading to confusion as to where indeed the Will of a deceased person is held, or more significantly, whether the deceased ever executed a Will.

11 Mar 2024

Team name
William Cook

William Cook

A Will can often be a source of guidance and clarity as to the deceased’s wishes in an otherwise turbulent time. Alternatively, it can act as a starting point for an individual who holds concerns as to the validity of a Will and seeks to challenge such. A disappointed beneficiary may also wish to advance a claim if they feel that they have not been adequately provided for.

If a Will cannot be found following a reasonable search, the intestacy rules will then be applied to an estate. These rules offer a list of hierarchy as to whom would inherit from the estate, beginning with spouses and civil partners, close family members and ultimately resulting in the estate falling to the Crown. Unfortunately, there is no recognition for unmarried partners. Consequently, the application of these rules may lead to a vastly different distribution of assets from the anticipations of the deceased.

The Court have recently considered the position if the original Will cannot be located. This is to say that only a copy of the original exists. There is long established case law from which a presumption exists that if an original Will cannot be found that it is presumed to have been destroyed by the testator (the person who has created a Will). In this event, it is considered that the testator’s intentions must therefore have changed from the provisions contained in their Will. In the absence of an earlier Will, the intestacy rules will apply.

In the case of Jones v Tracey [2023] EWHC 2242 (Ch) only a copy of the testator’s Will could be found following a search of his house. It was held by the High Court that due to the particular facts of the case that the presumption that the original Will had been destroyed should not apply. Here, evidence existed to suggest that the testator had confused the original Will and copies of this and had unintentionally destroyed the original. Further evidence existed to support that the testator’s intentions would not have been to destroy the original Will as the intestacy rules would then have applied to benefit an estranged sister.

M&P Commentary

William Cook, Solicitor in the Dispute Resolution Department at M&P, said:

“The presumption that the absence of an original Will signifies that it must have been the testator’s intention to destroy this has long been critiqued. The recent decision in Jones indicates a willingness from the Court to consider any associated circumstantial evidence when determining whether to apply the presumption. This could be argued to increase the likelihood that a testator’s intentions are given effect.”

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