If it is the case that a will cannot be found by family members after death, it is possible for a copy of the will to be submitted to probate. However, this may not always be the case and there are hurdles that must be overcome first. This week’s article will cover problems that can occur with lost wills and advice that could be given to clients.
If the will is lost and the last known location of the will was in the Testator’s possession, a presumption arises that the Testator has destroyed the will with the intention of revoking it.
This presumption is rebuttable by showing enough evidence of non-revocation. The exact amount of evidence required will vary from case to case, as the strength of the presumption of revocation varies depending on the level of security, or lack of it, of the Testator’s custody of the will. The safer the Testator held the Will, the stronger the presumption. For example, for a person who keeps meticulously neat files there would be strong presumption that they destroyed the will, as such a person would not easily mislay a will.
Evidence used to rebut the presumption varies, but can include statements made shortly before death that are inconsistent with having destroyed the Will and that the Will was made so recently before their death along with there being no evidence to suggest the Testator had changed their mind.
A leading example of a lost will is Sugden v Lord St Leonards, which concerned a former Lord Chancellor in the 1800s. The Testator kept his will, along with eight codicils, in a locked box. There was a spare key to this box that was not kept securely. Upon opening the box after his death, the codicils were found but the will was missing. It was held that the presumption of destruction was rebutted as no former lawyer would have destroyed their own will without also destroying the codicils and writing a further will.
Obtaining Probate of a lost will
Where the original will is lost, it may be possible to obtain probate of a draft, copy or possibly even an oral reconstruction of the will. An application for an order under rule 54 of the Non-Contentious Probate Rules 1987 will need to be made. Evidence to show the terms of the will, that the will was duly executed and that the will hasn’t been revoked will need to be provided. Family members would need to seek advice from probate professionals at this point.
Advice to Clients
With all wills produced by WillPack, we also provide a remote attestation record that should be signed in the same way as the will. We strongly advise that these are completed and returned to us for our files. In the event of a lost will, the remote attestation record can be used as evidence to show that the will has been executed validly.
Professional will storage, such as that provided by the National Will Archive, is highly advisable to avoid risks of the will being lost. Furthermore, in the unlikely event that a professional storage company lost a will, the presumption of destruction does not arise as the last known location of the will is not in the Testator’s possession.
Wherever the client decides to store their will they should be advised to let their executors know where that will is stored. This will ensure that the will can easily found after the client has died, otherwise the proposed executors and beneficiaries may not be able to find the will. This may mean that they decide that the will is lost and instead rely on the terms of intestacy or an old will that they are unaware has been revoked. Furthermore, the clients could also consider registering the location of their will through a company such as Certainty to ensure that their executors and beneficiaries can find it. Further information on Certainty can be found here.