Lost, Damaged or Destroyed Will
What to do if a Will has been lost, damaged or destroyed
A Will does not take effect until death and generally speaking, can be changed or revoked at any time. A Will can be revoked by destruction by the person making the Will.
Therefore, when a Will which was known to be in the deceased person’s possession cannot be found upon their death it raises the question: has it been lost or destroyed?
If a Will has been lost, there is a presumption it was revoked by destruction by the maker.
However, it may be possible to deal with the estate even if the Will cannot be found or produced. An application can be made to court for evidence of the Will’s contents to be accepted in place of the original Will.
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In some circumstances evidence of the person’s intentions can be put forward and accepted in place of the Will. An example of this is where a Will was destroyed in a property fire and there was evidence remaining of its contents.
It is up to those seeking to benefit under the lost Will to prove that the person did not intend to revoke it.
Sometimes a copy of a signed Will can be relied on. Where the original Will has been lost, or destroyed for some other reason, an application can be made to the Court for documentary evidence of its contents to be accepted in its place. This can include, but is not limited to, a copy or completed draft.
What if original Will cannot be located?
Do you know there is a Will, but cannot find it? There are various methods we can use and various places (including national databases) we can check, in order to try to find the Will.
In recent years, a company called Certainty has been attempting to provide a solution to the problem of Wills which cannot be found. Certainty is a national Wills register and is used by many, but not all, solicitors who offer Will writing services.
Certainty also offers search functions for both Wills which they have registered and Wills which have not been registered.
Registered Wills can be easily searched for in very much the same way as one would for any other register. Unregistered Wills can be searched for at the same time as a registered Will search. This is where Certainty will contact all potential firms and Will writers which the deceased may have used and enquire with them as to whether they hold any information about a Will for them.
Do solicitors keep a copy of your Will?
Most people lodge their Wills with their solicitor for safe keeping. Solicitors that have archive facilities are usually happy to securely store your Will. At Mullis & Peake all Wills are kept in our safe storage room free of charge.
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Frequently asked questions
When an original Will has been destroyed it is usually determined that the Will has been revoked. An application can be made to court for evidence of the Will's contents to be accepted in place of the original Will. This can cause great difficulties and ultimately it can be left to the District Probate Registry as to whether or not the application can progress on the strength of a copy of that last Will. If there is no earlier Will then the estate will fall to be distributed under the Intestacy Rules.
An application for a grant of probate can still be made if only a copy Will exists but the Court would need to be satisfied before they issue the grant:
- the application will need to address the issue of due execution; and
- the Court will want to be satisfied as to why the original cannot be found and what steps have been made to locate and find the original Will.
Proving copy Wills is an extremely complex area and expert evidence should always be sought. To be allowed to proceed, witness evidence will be required to confirm the existence of the original Will and explaining why it cannot be produced. It must also give details of what was in the Will. Where the contents of the will are likely to be challenged, the registry may require the application to be dealt with by giving notice to any potential beneficiaries.
- Try looking through the deceased’s paperwork, you may find a letter from their solicitor.
- Contact the deceased’s solicitor and/or bank, solicitors often keep their clients’ Wills in storage facilities.
- Check with Wills records facilities. Certainty, the National Will Register is the most well-known, they have millions recorded on their system.
If a new Will is discovered after the estate has been administered, you need to get expert legal advice. The original Grant of Representation must be revoked and a settlement negotiated. If this is not possible, then legal proceedings may follow.
This is problematic if the newly discovered Will is valid as the estate may have been administered incorrectly. Either, it will have been administered according to the rules of intestacy, if it was thought that the deceased didn’t have a valid Will or, it will have been administered according to the terms of an old Will (which may have different provisions), but now a later version of the Will (or a codicil) has been located.
The personal representatives who administered the estate are personally liable for any mistakes. The correct beneficiaries will, understandably, be upset that they have not received their entitlement. Yet the beneficiaries who were paid out incorrectly may have already spent their inheritance. Where possible, a negotiated a settlement should be reached between the parties involved as court proceedings will be expensive and lengthy.
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Wills and Probate Team
Manzurul is a Member and heads our Wills and Probate team.
Martyn is our Chairman and the firms' Compliance Officer for Legal Practice