Should it be 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 for probate. This would be a complex procedure, with the Executors providing very detailed evidence that the copy is true to the Testator’s intentions and that the original Will was attested.
Matters will be made more complex if the last known location of the Will was in the Testator’s possession. In such a case, 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 concerns 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.
Wills held in storage with third parties would not have this issue. If the Will was lost, given that the Will is last known to be in the hands of a third party rather than the Testator, the presumption would not arise.
Should a Will be lost at death, family members should be directed to expert probate advisors who should be able to assist them with proving a copy Will.