When a person passes away having made a will in order to apply for the Grant of Probate and administer an estate, the original will is normally required. The original will is generally sent to the Probate Registry with the application for probate, and is retained by the Probate Registry, although official copies of the will can then be purchased from the Probate Registry directly.
Issues can, however, arise, where a person passes away, having made a will, but the original cannot be located.
When a will can not be located
If the original will is not held by the deceased’s solicitor, and cannot be located among the deceased’s papers, there is a presumption at law that, if the will was last known to be in their possession and cannot be found, the will has been destroyed with the intention that the will be revoked (destruction of a will with the intention to revoke the will being one of the ways in which a will can be revoked).
Obviously, this can have very serious implications, and may mean that the beneficiaries who it was intended to benefit from the estate, do not receive what was intended to pass on to them.
If the presumption applies that the will has been revoked, and there is no later valid will, then the rules of intestacy will apply instead, which will not necessarily follow what the deceased would have wished to happen.
It is, however, possible to rebut this presumption, if sufficient evidence can be supplied that it was not the deceased’s intention to revoke the will and that this was still their valid last will and testament.
It also sometimes happens that the original will is lost or destroyed, after the person has passed, for example while in the custody of the executor of the will. In this case, there would be no presumption that the will has been revoked.
How can a missing will be proved?
How then can a will be proved and probate granted, if the will has been lost, damaged or destroyed?
It is possible, in exceptional circumstances such as these, that a copy, or even a draft will can be admitted to probate, so that the deceased’s wishes can be carried out.
In these instances, and in addition to the usual documentation and information which must be supplied to the Probate Registry to apply for probate, further information will also need to be supplied.
This is often in the form of an affidavit / statement of truth setting out the circumstances in which the will was lost, damaged or destroyed, and, if necessary, also evidence as to why it was not the deceased’s intention to revoke the will.
The Probate Registry will then determine whether they are satisfied with the evidence that has been produced to them, and whether they are prepared to issue the Grant of Probate to the executor named in the will.
If the Probate Registry is not satisfied with the evidence produced, they may not issue the Grant of Probate requested.
Even if the Probate Registry is satisfied and a Grant of Probate is issued in circumstances such as this, the grant will normally be limited until the original will is located or a more authenticated copy can be submitted.
It is, therefore, imperative that original wills are stored securely at all times, and that copies are retained, in case of emergency.
Taking care of your will
We are able to assist with the storage of wills, if required, and are also able to advise further in the case of lost, damaged or destroyed wills.
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