What happens if the original cannot be found, is more common than many people suspect.
Personal representatives tasked with a person’s affairs, are faced with a number of challenges, both legal and practicable. Some of these challenges can be complex and involve dealing with contested wills.
However, sometimes it may well be simply that the deceased will cannot be found, but rather a copy of the will, sometimes this is a copy which shows it has been executed correctly, sometimes it is simply a copy of an unexecuted will. The factors depend on each unique case, but families can become very suspicious as to the nature of a lost will, has another member of the family destroyed the will knowing that the will did not make any provisions for them, but if there was no valid will they would obtain a part of the estate under the intestacy rules.
Many factors and reasons why a will cannot be found occur. Often it is simply that the will has been lost, particularly if people have moved into care homes, or other institutions.
Often a will is known to exist because the deceased person has told family members that a will does exist.
Where a lost will situation arises, then in those circumstances, given the duties of executors, the position must always be considered very carefully.
It is never sufficient simply to submit a copy will with an application for a Grant of Probate on its own, the District County Probate Registrar will not accept this, and refuse to issue the grant in such circumstances.
However, locating a deceased original will, is not always straight forward, particularly if the will was made a long time prior to death, or if the deceased was a particularly private person with their personal affairs.
The first part of this exercise therefore, it is important that the personal representative attempts a thorough search to try and locate the will, including searching a local solicitor if that is appropriate, particularly if a person is known to have dealt with a firm of local solicitors during their lifetime. Also, one should consider the check at National Will Registration Companies, although these are not compulsory and cannot be treated as exhaustive.
There now are firms available which will carry out searches on behalf of the executors, and a fee is payable.
However, sometimes the original will simply cannot be found, and in those circumstances, the personal representatives are faced with a procedure with the District Probate Registrar or District Probate Registries, which involve applications under the provisions of ‘Copy Wills’.
The next point in this exercise is to establish if in fact the copy of the actually executed will exists, and sometimes these are retained by family members, or indeed local law firms or will writing firms, who completed the draft will in the first place.
If the deceased received investment advice during their lifetime, it may have well been with FCA. A comprehensive history of the deceased’s dealings should be established by the personal representatives if they can.
In certain circumstances, an application to omit a will or copy will, or even the terms of a will recounted in the form of a witness or affidavit, can be made to the Probate Registry. Depending on the evidence provided, it will be the District Registrars decision, at their discretion to omit the application or not. Often in these situations the District Probate Registry will request a number of enquires to be met, and this can be a time consuming, expensive and lengthy process.
If the original will cannot be found, then steps should be taken to identify who was responsible for restoring it, and where the will can last be traced.
Was it stored with local solicitors who prepared it?
Was it kept by the deceased themselves?
Did a family member hold it for them?
Did the deceased give it to their personal representative?
Did they place it in a will’s storage company?
This exercise is crucially important, because if the original will cannot be found, and the last known location of the will was in the testator’s possession, a presumption arises in the absence of circumstances tending to a contrary conclusion that the tester destroyed the will, with the intention of revoking it. In the event of that presumption prevailing, any copy will, or terms of the re-constructed will could not be omitted to probate, and the event of no later will subsequently being traced or located, the estate would pass in accordance with intestacy provisions, which may not reflect the testators wishes.
It is therefore important to understand, and some personal representatives and family members have difficulty with this, is that if the will was lost then the presumption on the Probate Registrar is that the will has effectively been revoked. The District Registrar has to start with this presumption, and in effect the following procedure is an attempt to show that that presumption is incorrect, and that any copy will, or terms of will as previously indicated, should be accepted for the purposes of a Grant being issued to the appropriate applicant.
It should also be noted that this is however, merely a starting point and the presumption is rebuttable, if enough evidence to the effect that the will was not revoked, can be produced. Such evidence may include, declarations of the testator’s unchanged intentions, or evidence as to their state of mine.
As a matter of interest, one of the leading cases in this matter was in fact a very old case of ‘Sugden v Lord St Leonards (1876), which concerned a former Lord Chancellor (1880’s), Lord Edward St Leonards.
Without going into the details of the case, evidence was produced by Lord St Leonard’s daughter that a lost will had in fact been read to her and she remembered the content. This was accepted by the Court, and the eventual Grant of Probate was issued. The considerations raised in that case remain relevant to today’s situation. It was held that the presumption of destruction with the intention to revoke was rebutted, on the basis that, as a former lawyer, the Lord Chancellor would not have destroyed the wills without also destroying the codicils and writing a further will. In this instance the codicils were found, but the original will was not.
If the will cannot be traced last to the custody of the testator, then the presumption will not apply, so the starting point becomes subject to the contrary evidence, that the personal representative should put a copy of the last will to probate.
An application to omit a copy will to probate, should be made under the appropriate Non-Contentious Probate Rules 1987.
When making the application, the personal representatives will need to submit an affidavit or statement of evidence setting out:
- The circumstances relating to the loss of the original will;
- The attempts that have been made to locate it;
- Details of anybody who would benefit from the estate, if the copy will was not proved (that is, usually the persons who would be entitled to greater benefit if the deceased had died intestate, but who do not benefit in the same degree under the will sought to be omitted).
In our experience, this forms the enquiries that the Probate Registrar will raise and want to see answers to.
This is complex piece of law, and legal advice should be sought.