A lost will can create significant practical difficulties after death. If the original signed will cannot be found, this may delay the administration of the estate, increase costs and potentially lead to disputes between family members.
The loss of the original does not necessarily mean that the terms of the will cannot be followed. In certain circumstances, the Probate Registry may accept a copy, draft or reconstruction of the will.
Why Does the Will’s Last Known Location Matter?
When an original will cannot be found after the testator’s death, the legal position will depend partly on who last held it.
If the original was last known to be in the testator’s possession but cannot be located following their death, the court will presume that the testator destroyed it with the intention of revoking it. This is known as the presumption of revocation. It may be displaced by evidence showing that the will was more likely lost, accidentally destroyed or removed without the testator’s knowledge.
The strength of the presumption varies according to the circumstances. It may be stronger where the testator kept important papers carefully and stored the will securely. Conversely, it may be weaker where documents were frequently misplaced, several people had access to the testator’s papers, or the will disappeared during a house move or clear-out.
The position is different where the original was last held by a professional will-storage provider. If the will cannot be found in those circumstances, the presumption of revocation does not arise.
What Evidence May Be Relevant for a Lost Will?
Every case will depend on its own facts.
A leading case on lost wills is Sugden v Lord St Leonards (1876). The case concerned a former Lord Chancellor whose original will could not be found after his death. He had kept the will in a locked box together with several codicils. Although the codicils remained in the box, the will itself was missing.
The court concluded that the circumstances were inconsistent with deliberate revocation. In particular, it was considered unlikely that an experienced lawyer would destroy his will while leaving in place the codicils that depended upon it. The retention of those documents supported the conclusion that the will had been lost rather than intentionally revoked.
The case is also significant because no complete copy of the will was available. Much of the evidence about its contents came from Lord St Leonards’ daughter, who had read the will on several occasions and heard her father read it aloud. The court accepted her recollection, supported by the surviving codicils and surrounding evidence
Can a Copy of a Lost Will Be Admitted to Probate?
Under rule 54 of the Non-Contentious Probate Rules 1987, an application may be made to prove a will where the original is unavailable. The court may admit a copy, draft or reconstruction, but the applicant will usually need to provide evidence of the following:
- That the original will was signed and witnessed in accordance with section 9 of the Wills Act 1837;
- The terms of the original will; and
- that the will was not revoked including any evidence of rebutting the presumption of revocation if relevant.
Evidence may be required from the executors, family members, witnesses to the will and the professional who prepared or stored it.
Before applying to prove a copy, comprehensive searches should be undertaken and documented. These may include searching the deceased’s home and papers, contacting current and former will drafters, checking with banks and professional storage providers, and searching any relevant will-registration service. It is important to establish when the original was last seen, where it was kept and who had access to it.
The Probate Registry may direct that notice of the application be given to anyone who would be prejudiced if the copy were admitted. This may include relatives who would inherit under the intestacy rules. Their agreement may assist an uncontested application, although it does not remove the need to provide satisfactory evidence.
Preventing a Lost Will
Testators should store the original will securely, tell their executors where it is held and retain details of the relevant storage provider if it professionally stored. The will’s location could also be recorded with a will-registration service such as the National Will Register.
Whenever a testator moves home, changes will drafter or makes a new will, the storage arrangements should be reviewed. Executors should be told where the will is kept.
Conclusion
A lost will can create significant uncertainty for those responsible for administering an estate. However, the fact that the original document cannot be found does not necessarily mean that the estate will pass under the intestacy rules.
Where sufficient evidence is available, the Probate Registry may be prepared to admit a copy or reconstruction of the will. Careful record keeping, secure storage and prompt investigations remain the best way to minimise the difficulties that can arise when an original will goes missing.
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This article is provided for general information only and does not constitute legal advice. Any advice, wording or clauses referred to are illustrative and should not be relied upon as precedent without full consideration of the client’s circumstances, the will as a whole, and the law in force at the relevant time.
