Missing Wills ' All Is Not Lost

• Published date: 10 April 2023
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Shepherd and Wedderburn LLP
• Author: Mr Stephanie Hepburn

What happens if the principal will cannot be found after someone dies? All is not lost. There is a court action that can be brought, either in the sheriff court or Court of Session, as a means of reviving the lost will with the same force and effect as the original will.

Missing wills - all is not lost

In a testate estate, that is, one where the deceased has left a will, the executors are required to obtain Confirmation to the deceased's estate, and require to submit the principal will, or an extract registered copy (registered after death), with their application for Confirmation. It is the grant of Confirmation which provides the executors of the estate with the legal entitlement to deal with the estate property and assets.

What happens if the principal will cannot be found after someone dies? The consequences may be significant, particularly if there is a prior will in different terms, or the distribution under the laws of intestacy (where there is no valid will) would differ from that set out in the missing will. But all is not lost. There is a court action that can be brought, either in the sheriff court or the Court of Session, as a means of reviving the lost will with the same force and effect as the original will.

The action can be raised by the executor(s) or a beneficiary under the lost will. The defenders to any action are those who have an interest in the will being proven. This will include beneficiaries under the lost will, but also any beneficiaries (if different) under an earlier will, or those who would stand to inherit should the estate be dealt with under the laws of intestacy. Where only the person bringing the action has an interest, the Lord Advocate must be called as representing the public interest.

What needs to be proven?

The 2022 case of RW v JW is a helpful reminder of what needs to be established, on the balance of probabilities, before an action to prove the tenor of a lost will can be successful:

1. The terms (or tenor) of the will;
2. The execution (i.e. signing) of the will; and
3. The circumstances of the loss.

The terms and execution

If there is a copy of the signed will, tests 1and 2 should be relatively straightforward and the copy is lodged with the court papers. If the copy is unsigned, evidence is required that the deceased signed the will.

The court can consider wills which have been lost and not copied but the proof of the terms of any such will, and its execution, becomes much...