As we know, a Will takes effect on death, so it’s important to keep it safe for when it’s needed. Some may choose to store their Will with their will writer, a solicitor, at their bank or with a professional storage company such as The National Will Archive. Others may simply choose to store their Will at home instead.
On rare occasions, however, a Will may not be found and you might be wondering what happens, or what to do in those circumstances.
So what should you do if the Will cannot be found? First and foremost, it’s important that the executors/personal representatives conduct a very thorough search to try and find the original Will. Examples include:
- Speaking to family and friends
- Check with professional will writers and solicitors in the area to see if they were instructed and hold the Will
- Place an advert in the Law Society Gazette
- Contact a search organisation such as The National Will Register
What if a copy of the Will has been found but not the original?
There may be instances where a family member finds a copy Will stored in the deceased’s home but there’s no sight of the original Will itself. The question then arises as to whether the original Will has been revoked and this would effectively involve tracing the Will back.
If the Will was last known to be in the testator’s possession, a question would arise as to whether the Will was destroyed and therefore revoked, unless there was evidence to the contrary. If there is no such evidence, a copy of the Will could not be admitted to probate and therefore the estate would pass in accordance with the laws of intestacy.
If the original Will can still not be found and is not traced back to the testator, the executors can attempt to prove a copy of the Will in place of the lost original under Rule 54 of the Non-Contentious Probate Rules 1987. This would involve applying to the probate registrar for permission to prove the copy Will by providing a written statement of the steps taken by the executors to locate the Will, details of anyone who would benefit from the estate if the copy Will is not proved and why there is a belief that the Will has not been destroyed with the intention to revoke it. This is to overcome the presumption that a Will has been revoked if it is missing at death and last known to be in the testator’s possession.
There would also be a requirement to include in the statement who would be left worse off if the copy Will was proved. There may be instances where the probate registrar also asks for a separate affidavit of due execution from the witnesses, confirming that the original Will had been validly signed.
To prevent your personal representatives/executors from facing such a situation, it is important to inform them where your Will is kept, record details of where your Will is so that it can easily be located, or better still, have your Will stored professionally instead. There may be a fee for storage with some professionals and companies, however, more importantly, it ensures your documents are kept safe. We have another great article about the importance of professional storage that you can read here.
A Will can also be registered with The National Will Register which can make it easier to find a Will post-death in the event a Will is lost, or even where there are doubts a Will existed at all. All Members of the SWW can register their client’s Wills on their behalf, so speak to your Member about this service.