A question we are asked with increasing frequency is what can be done when an original Will cannot be located. Perhaps it’s lost or even been destroyed.
When making an application to the Probate Registry after a person has passed away, in order to apply, it is necessary to provide evidence of the deceased‘s original last Will and Testament. But if the deceased’s original cannot be located then here are some tips on how you may proceed.
Sometimes, it’s possible that a copy of the original will can be found, however given this is a copy and not the original, then this would not be accepted Probate Registry.
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How do I apply to the Probate Registry?
You can apply for either a Grant of Probate or a Grant of Letters of Administration. Both allow the applicant, the Executor or the Administrator, to administer the Estate either in accordance with the wishes of the deceased, or, if there is no Will, in accordance with the Rules of Intestacy.
How do I find a lost or missing Will?
The first thing to say is do not panic. When a Will has been professionally drafted by a solicitor, it is usual for that solicitor to store the original Will for safekeeping. You can approach that solicitor’s office, or its successor in practice, to ask them to retrieve the original will from their archives.
A search can also be made of Certainty, the National Wills Register. Whilst registration is not compulsory, many Wills have now been registered and this is a valuable first step in any Will search.
Finally, enquires can be made directly with the person’s bank, accountant, and financial advisor, and we can contact all local solicitors and Will draftsman to see if they hold the original Will.
If the original will cannot be found then it should be assumed that the person died intestate, that is, they died without a valid will.
► Find out more about What happens if there is no Will and the Rule of Intestate by reading this Blog.
What happens if the original Will has been destroyed?
If the original Will still cannot be found, you then must find out who last held the original. If the original was last known to be in the possession of the testator (that is the person who made the Will) then there is a presumption that the person has deliberately destroyed it, with the intention that it be revoked.
If it can be proven that the original Will was last in another person’s possession, for example a solicitor, then evidence can be provided to rebut or overrule that presumption. This is one of the many benefits of having a solicitor draft your Will and then store the original for you.
What happens if I destroy my Will?
If you destroy your original Will with intent then by virtue of it being intentional you have effectively revoked your Will. This means that, even if a copy of your Will exists, your wishes upon death will not be known. If however your executors (those listed in your will) are able to prove that destruction was either not intentional or was done whilst of unsound mind, then they may ask the Court to decide whether the Will remains valid and any copy of the will be used to determine the wishes of the deceased.
What should I do if I can only find a copy of a Will?
At Thornton Jones, we have acted in several cases where we have successfully applied to the Probate Registry to prove that a copy of a Will should suffice as evidence of the deceased’s wishes given that the original Will cannot be located.
In one case, the original Will was last known to be in the possession of the deceased, but using evidence from witnesses who knew the deceased well, we were able to disprove the presumption of revocation, and the copy of the Will was upheld.
In another case, we successfully proved a copy Will which was made over 30 years ago, and the solicitors firm who held the Will were no longer in existence and the original could not be traced.
Is a copy of a Will valid in the UK?
No. Whilst a copy of a Will may prove useful should the original will not be found, a copy of a Will cannot stand up as evidence of a person’s wishes. On occasions a copy of a Will can be accepted by the Probate Registry subject to the appropriate research and evidence being presented.
Each case will naturally turn on its own facts, and evidence may be required from witnesses or others close to the deceased who have direct knowledge of the deceased’s intentions.
Contact Us
Taking expert advice straight away is crucial so that the right evidence can be gathered and the beneficiaries of any lost Will do not lose out. If you need any further advice or assistance, please call us.
☎️ Call our Wakefield office on 01924 290 029
☎️ Call our Garforth office on 0113 246 4423
☎️ Call our Sherburn in Elmet office on 01977 350 500
☎️ Call our Mapplewell office on 01226 339 009
☎️ Call our Ossett office on 01924 586 466
About the Author
Liz Heads our busy Private Client Department. She is a qualified Trusts and Estates Practitioner having attained a Distinction in the STEP Diploma in Trusts and Estates Administration. She specialises in offering advice in relation to Wills, Probate, Trusts, Lasting Powers of Attorneys and Court of Protection Deputyship applications and is a member of Solicitors for the Elderly.
Liz is a member of the Association of Contentious Trust and Probate Specialists (ACTAPS). She deals with contentious probate cases, including challenges to the validity of Wills on the basis of fraud, irregularity, incapacity or undue influence, removal of Executors and Trustees and claims under the Inheritance ( Provisions for Family and Dependants) Act.
She recently represented the Claimant in the reported case of The British University in Dubai v Ebrahimi [2021] EWHC 757 (Ch) (26 March 2021), in which she successfully proved that a will, which had already been admitted to probate was a fraud ensuring that the estate was to be distributed in accordance with an earlier valid will.
Liz loves the variety that life as a Private Client lawyer brings. When she’s not working or studying, Liz loves to spend time with her husband and their young children which leaves little time for anything else!
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
