Shenanigans with Wills have long been great fodder for mystery and whodunnits. Individuals lured by the love of lucre are tempted into manipulating Wills or lack of a Will to ensure they inherit when they bump off the poor victim in the novel. As an avid Agatha Christie reader, I’m quite familiar with these tropes – forged Wills, Wills signed by the wrong person, characters taking the place of the real beneficiary, a Will written in invisible ink and (including Dame Agatha’s first novel “The Mysterious Affair at Styles”) missing Wills.
But what happens in real life if, on a person’s death, their Will cannot be located.
The first task is to make sure that a thorough search has been made for an existing Will – whodunnits aside, the most usual places to look would be:
- The deceased’s home and making enquiries with any family or friends they may have trusted to look after it;
- Any firm of solicitors they may have used in the past (eg for a house sale);
- Any bank they use in case a Will has been placed for safe storage;
- A Will database (which might also offer help searching with local solicitors)
- The London Probate Department
A search must be thorough and properly carried out as there are obvious difficulties if a Will turns up when an estate has already been distributed as though there were none.
If you cannot find a copy of the Will, or any evidence that one existed, it is likely the estate will have to be dealt with as an Intestacy, following the strict Intestacy Rules.
You might however locate a photocopy of a Will, signed and witnessed, but cannot find the original. The Probate Registry usually requires the original Will to be presented when applying for a Grant of Probate, and if you are applying with a copy, evidence has to be produced explaining (so far as you can) what has happened to the original and how it was lost.
There is also a legal presumption that if a Will was kept at home by the deceased and the original cannot be found after their death, that they revoked it by destroying it. Any application to the Probate Registry on the basis of a copy Will in those circumstances would need to include evidence and statements rebutting that presumption.
We have recently dealt with a case where the Will of the deceased was held by the company which made it. After the deceased’s death, the Will was posted to the Executor at home. Unfortunately the Executor died before even beginning to administer the estate and her family was not able to find the original Will at her home. We acted for the beneficiaries of the estate and when we came to apply for the Grant of Probate, we produced the copy Will to the Probate Registry along with evidence and statements to confirm that the original had been in existence after the first death and what had happened to it along the way. We also had to produce a specific statement from the Will writing company by the person who saw the Will and posted it off. We have now successfully proved a copy of the Will, under which the deceased left her estate to charity. If there had been deemed no Will, an estranged daughter would have received the estate instead under the Intestacy Rules.
But what if all you have is a draft of a Will, and no signed copy? This has been recently looked at by the Court in the case of Cooper v Chapman. This case concerned a homemade Will from 2018 which could not be found, but would have benefitted the deceased’s unmarried partner. Estranged family members of the deceased (who would inherit if there was no Will) claimed that in the absence of the original Will, the deceased should be presumed to have destroyed it with the intention of revoking it.
The Will had been drafted by the deceased on his home computer, where a final draft was located by computer experts, who were able to confirm it had not been modified after a certain date. There was also evidence from the two people who claimed to have witnessed the deceased’s signature to the Will at the time and were able to give information about the contents of the Will, consistent with the electronic draft which had been found. Evidence was also given indicating that the way in which the Will had been executed and witnessed meant it complied with section 9 Wills Act 1837 and would have been a valid document.
The Court also took the deceased’s personal circumstances into account in reaching their decision and looked at whether it was probable that the deceased would have made a Will in those terms, i.e., would he have wanted to benefit the people who were named in the Will and exclude those who weren’t.
On the balance of probabilities, the Court found in favour of the draft Will and it was accepted to proof as the deceased’s final wishes. This shows that even if an original document is missing, it can still be possible to prove a draft Will where there is also reliable evidence of the draft having been signed and witnessed correctly. It also shows clearly that the search for a missing Will should include inspecting electronic devices where this does not breach other legislation.
For those of us spending time and effort making a Will to set out our wishes, it is so important that the original signed document is kept safely. If you keep your Will at home, make sure the family members know it has been made and where it is stored so that it can be located after your death. Formal storage with a solicitor or your bank is highly recommended so that the document is kept safe by an independent party and access to it can be controlled by them after your death, but make sure that you let your executors or other trusted people know where it is.
At Else Solicitors, we offer free registration with National Will Database and free Will storage for all our clients. For more information please contact Kathryn Caple on 01283 526200 or email Kathryn.caple@elselaw.co.uk.