Sometimes, Personal Representatives may find themselves in an awkward situation where the original Will of the testator cannot be located and/or only a copy Will is possessed.
Prima facie, the Probate Registry will not accept a copy Will with the probate application. In most circumstances, the Executor can only begin his/her duties once the grant of probate has been extracted.
Delays with the probate application will not only hinder timely distribution of the estate but in certain circumstances could also cause the estate to depreciate in value (where there are time sensitive assets) inevitably resulting in legal disputes.
What to do if a Will is lost
So, what should a personal representative finding themselves in this position do? Extensive efforts need to be made to try and locate the Wills. Although this is not an easy task, the following steps can be taken to locate the lost Will:
- Search the National Will Register using the Certainty Will Search service- although there is no obligation to register the Will, the National Will Register has over 9.4 million Wills registered on the system.
- Contact local solicitors in the area where the testator lived and specifically those that the testator may have mentioned during their lifetime. If the personal representative possesses a copy Will, it may be stamped by the firm that drafted it and/or witnessed by those employed at the firm. This may be time consuming and particularly difficult if the deceased did not openly discuss their legal affairs. If the firm that assisted with drafting and execution of the Will was also responsible for storing the original Will then they may be able to provide affidavit evidence to the probate registry who may consequently decide to admit the copy Will.
An application to admit a copy will to be probate should be made under rule 54 of the Non-Contentious Probate Rules 1987.
What if the original Will can be traced back to the testator?
Section 20 of the Wills Act 1837 states that any Will can be revoked by destruction. Therefore, if the Will can be traced back to the testator, there is a presumption, in the absence of satisfactory evidence to the contrary, that the testator destroyed the Will with the intention of revoking it. The difficulty is that if the estate is subsequently distributed in accordance with intestacy rules (revocation of a Will does not revive any previous Wills), this may not reflect the testator’s true wishes, it may also give rise to various claims against the estate if provision has not been made for those who do not qualify as beneficiaries under the intestacy rules.
The presumption that the testator destroyed the Will is rebuttable. It would need to be shown that the testator did not destroy the Will and/or they had no intention to revoke it. Examples of evidence include statements by the testator showing unchanged intentions or any declarations made showing their frame of mind. An illustration of a successful rebuttal can be found in the case of Whitton v Herman .
As above, the presumption does not arise if the Will cannot be traced back to being in the possession of the testator.
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