One of the first questions you are likely to be asked following the death of a loved one is: "Where is the original Will?" Not knowing the answer can raise important legal issues and significantly complicate the administration of the estate.
Original Wills can sometimes be lost, destroyed accidentally, or simply become difficult to locate where, for example, nobody can remember which solicitor was storing the document. Unfortunately, it is often only after the Testator's death that an original Will is discovered to be missing, at which point it is impossible to ask them where it was kept.
In certain circumstances, it is possible to obtain a Grant of Probate using a copy of a Will where the original cannot be found. However, the Probate Registry will require evidence explaining what happened to the original Will and why the copy should be accepted. The process is often more complex than a standard probate application and the outcome will depend on the particular facts of the case.
Key legal presumption
A particularly difficult situation arises where the original Will was last known to have been in the possession of the deceased. In these circumstances, a legal presumption arises that the deceased intentionally destroyed the Will with the intention of revoking it. Whilst this presumption can be rebutted, doing so is generally more complex than obtaining a standard Grant of Probate.
The process for proving a copy Will
An application to prove a copy Will usually involves:
- Locating the best available copy
The copy should be the clearest and most complete version available.
- Conducting thorough searches
All possible locations where the original Will may be held should be investigated, regardless of how time-consuming or inconvenient those enquiries may be.
- Gathering supporting evidence
This may include witness statements from family members, friends or professionals explaining the circumstances surrounding the missing original Will.
- Responding to further enquiries
The Probate Registry will often require additional information before determining the application. As every case turns on its own facts, the level of evidence required can vary significantly.
The Probate Registry has a wide discretion to request evidence before issuing a Grant of Probate. To illustrate the extent of enquiries that may be required, we recently dealt with an application where the Probate Registry directed that all potential beneficiaries under the intestacy rules be notified. In that case, there were 17 individuals spread across several different countries who had to be traced and contacted before the application could progress.
Practical tips
It will come as no surprise that obtaining Probate using a copy Will can be both costly and time-consuming. To reduce the risk of difficulties arising in the future, we recommend the following practical steps:
- Store the original Will in a secure location
- Ensure your executors know where the original is kept
- Keep a record of any solicitor or professional storage arrangements
- Avoid removing staples or making handwritten alterations to the original document
If you are acting as an executor and the original Will cannot be located, obtaining specialist advice at an early stage can help avoid unnecessary delays and ensure that the strongest possible application is submitted to the Probate Registry.
If you would like advice regarding a missing Will or any other aspect of estate administration, please do not hesitate to contact me or a member of our Private Client team.