Losing The Will

• Published date: 14 March 2023
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Weightmans
• Author: Mr Matthew Morton and David McGuire

Legal background

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.

Destruction

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 If the Will cannot be found there is a presumption it was revoked by destruction by the testator.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...