Where there’s no will – is there a way? What to do if an original will is lost or destroyed.

Posted on 26 July 2019

In order for the wishes in a will to be carried out, the original needs to be produced to the Probate Registry.  But. Sometimes wills just get lost.  What happens if this has happened to a deceased loved one of yours?  It might have been thrown out in a big clear out, lost in a fire, or put in such a secure hiding place that people might not uncover the document for generations (in a safe, buried under a tree, at the end of the garden?)

There’s good news and bad news in these situations.  Starting with the good news: if you have strong enough evidence of the existence and contents of the last will it is possible to have the will honoured. The bad news is that when you make an application to court to do this the legal presumption is always that if a will can’t be found, then the testator destroyed it with the intention to revoke it.  You need some pretty serious evidence to overturn this presumption, but it is possible.

Messy office by JF Martin

Photo credit: JF Martin

The take home message should always be that if you can’t find an original will at first you should go to very long lengths to try to find it.  Finding the original will provide certainty, and also save a LOT of avoidable legal costs. If you’ve contacted the National Will Register and been through every single piece of paper in the house/ storage/ shed, searched under the floorboards/ behind kitchen counters/ emptied the attic, rotavated the garden lawn and dug up the flower beds, and you still can’t find the original it could be time for you to make an application to the Probate Registry under s54 of the Non-Contentious Probate Rules 1987.

You can make an application under these rules where you either (a) have a photocopy of the will, or (b) have very strong evidence of what was contained in the original will (e.g. notes from meetings with solicitors, or notes etc).  As mentioned above, there’s a common law presumption that if a will can’t be found, it’s been destroyed by the testator with the intention to revoke it.

Your application will have to be supported by evidence of (1) how the original might have been lost (e.g. if the deceased had a habit of losing or throwing things away) (2) what you’ve done to try to find the original (see the notes above about searching in every nook and cranny), and (3) and some bona-fide evidence that the testator didn’t/ wouldn’t/ couldn’t have intended to revoke the will. This can be in the form of evidence showing that the testator continued to have a strong loving relationship with everyone who would have stood to benefit under the terms of the will.

If there are people who might have missed out because of the terms of the will (e.g. a child written out of the will, or a large charitable gift reducing the estate for the residuary beneficiaries) then the Probate Registry will give those people a chance to respond to the application.  If there is a contest then the application will be heard in court with evidence from the executors who have put the application together and those people who may lose out.  The courts will then decide whether the presumption that the testator destroyed the will with the intention to revoke it stands.  It is a tough one to overcome.

As you can see, getting the wishes expressed in a will carried out if the original can’t be found is an extremely laborious process.  The lesson in all cases should be to ensure that the original is well looked after so that these legal gymnastics aren’t necessary.  The National Will Safe provide an excellent storage solution and also register each will with the National Wills Register.  Failing that: ensure that you keep the will somewhere that is safe and secure, and also ensure that all of the executors know exactly where to find it.

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