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Lost Will Procedure

Applying for probate can be a Stressfull and Exhausting task, but our specialists are here to make it feel simple. In this guide, you’ll find everything you need to know about going through probate and dealing with someone’s estate.

Lost Will Procedure

Where the deceased’s next of kin or the personal representatives (PRs) believe that the deceased had made a Will but it cannot be found among the deceased’s papers nor a reference to its location found in the deceased’s emails , various enquiries and searches should be considered:

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    The Will cannot be found

    Where the deceased’s next of kin or the personal representatives (PRs) believe that the deceased had made a Will but it cannot be found among the deceased’s papers nor a reference to its location found in the deceased’s emails, various enquiries and searches should be considered:

    • enquiries of the deceased’s family and friends
    • enquiries of the deceased’s professional advisors
    • enquiries of the deceased’s bankers or safe deposit box keeper
    • search of the HM Courts & Tribunals Service (HMCTS) Probate Service to see if the deceased’s Will was deposited there.

    References:

    HMCTS Probate Service

    • a search of the Certainty National Will Register to see if the Will is registered with them

    References:

    Certainty National Will Register

    • placement of an advert for the Will in the Law Society Gazette

    The application for the order

    If the original Will or codicil still cannot be found and is therefore lost or has been accidentally destroyed or was found but has been lost since the deceased’s death, probate of a draft, copy or reconstruction of the Will or codicil may be obtained provided an order for leave to prove it is first obtained.

    References:

    NCPR 1987, SI 1987/2024, r 54

    The procedure for the order is set out in rule 54 of the Non-Contentious Probate Rules 1987 (NCPR 1987), SI 1987/2024. The same procedure is used where probate of an oral (or nuncupative) Will is sought. The application for an order for leave to prove is made without notice to the registry at which the subsequent application for the grant will be made.

    References:

    NCPR 1987, SI 1987/2024, rr 2(1), 54(1)

    The application is made by lodging an affidavit or witness statement, which must set out the grounds of the application and any available evidence as the applicant can adduce as to:

     References:

    NCPR 1987, SI 1987/2024, r 54(3)

    • the Will’s existence after the death of the testator or, where there is no such evidence, the facts which are relied on to rebut the presumption that the Will has been revoked by the testator during their lifetime by destruction
    • the contents of an oral Will, or
    • the accuracy of a reconstruction of a Will

    The order can be made by a district judge or registrar who may require additional evidence in the circumstances of a particular case as to due execution of the Will or as to the accuracy of the copy Will.

    References:

    NCPR 1987, SI 1987/2024, r 54(4)

    If available, lodge with the application the written consent of any person not under a disability who would be prejudiced by the application.

    A district judge or registrar may require the application to be made by summons to a district judge or registrar in chambers or to a High Court judge in chambers or open court.

     References:

    NCPR 1987, SI 1987/2024, r 61(1)

     

    The affidavit or witness statement supporting the application

    Where a copy or draft of the Will is available, the affidavit or witness statement should state:

    • where it is the case, that the original Will was in existence at the date of the testator’s death and was lost afterward, the circumstances in which it was lost (if known), and the efforts that have been made to find it, including (as exhibits) any adverts placed and stating whether they have produced a reply
    • if the original Will was not found or available at the death of the testator, the circumstances in which it was last known to be in existence, and the facts on which the applicant relies to rebut the presumption that the Will has been revoked by destruction, eg shortly before their death, the testator had referred to their Will as existing without mentioning revocation
    • if it is a copy Will, that the copy had been examined with the original Will and found to be complete and correct
    • if it is a draft, that the original Will was prepared from that draft; and if; after execution, the draft was compared and completed from the original, that fact
    • who is prejudiced by the admission of the document, their consents ( if obtainable), and whether they are all sui juris

    If there is no copy or draft of the Will available, the affidavit or witness statement should also depose to the contents of the Will as set out in a reconstruction.

    The district judge or registrar must also be satisfied as to due execution of the original Will and may require an affidavit or witness statement of due execution.

    References:

    Non-Contentious Probate Rules 1987, SI 1987/2024, r 16

    Lost Will

    Where the original Will is known to have been in the testator’s possession before their death and cannot afterwards be found, there is a rebuttable presumption that the Will was destroyed by the testator with the intention of revoking it (Patten v Poulton (1858) 1 Sw & Tr 55. This presumption will have to be rebutted if an order for the proof of a copy or reconstruction of the Will is to be obtained.

    The strength of the presumption will vary depending on the circumstances of the case. In Rowe v Clarke the court had to consider the presumption where it was unclear whether or not the Will had been in existence after the testator’s death. The court held that:

    References:

    Rowe v Clarke [2005] All ER (D) 368 (Oct)

    ‘… the strength of the presumption in any given case depends on the character of the custody which the testator had over the Will.’

    In this case, the character of that custody was very weak: the testator was not careful with his papers and had not attempted to keep the original Will secure. There was sufficient evidence to rebut the presumption. The court also held that the presumption can apply where there is no evidence that the Will was not in existence at the date of death. The person claiming revocation does not have to prove the non-existence of the Will at the time of death.

    Reconstruction

    If there is no original Will or copy in any form but there is evidence of the content of the Will when it was executed, an application may be made to prove a reconstruction of the Will. The court requires the drawing up of a reconstruction representing, as nearly as possible, the Will in its original form. This is exhibited to an affidavit or witness statement, verifying its form and content, marked by the applicant and photographed to provide the probate copy to be annexed to the grant.

    Original Will held by foreign court or notary

    Where the original Will cannot be produced because it has been retained by a foreign court or deposited with a notary, a copy, duly authenticated by the court or notary, may be admitted to proof by the district judge or registrar without obtaining an order giving leave to do so.

    References:

    NCPR 1987, SI 1987/2024, r 54(2)

    Original Will held abroad other than by a foreign court or notary

    Where the original Will or codicil or both are in the possession of a person residing abroad and there is evidence to show that person has refused or neglected to deliver them up, a copy may be admitted to proof if it is an authentic copy. Where the copy was transmitted to an executor, probate will be granted to the executor where they can show by affidavit, the manner in which it was transmitted, that a better or more authentic copy does not exist in this country and that it is essential for the interests of the estate that probate be granted, without awaiting the arrival of the original or a better or more authentic copy. The grant is limited until the original Will, or a more authentic copy thereof is proved.

    If the copy has been transmitted to a person other than the executor, that person will be required to give affidavit evidence in addition to that sworn by the executor.

    Original Will held in the UK

    If it appears a person has in their possession or control, a testamentary document, but they will not release it, or if they simply appear to know about the Will but will not disclose that information, the PRs should consider making an application to the High Court for a subpoena requiring them to bring in the document or attend for examination about their knowledge of the Will. See Practice Note: Obtaining the Will.

    References:

    SCA 1981, ss 122123

    NCPR 1987, SI 1987/2024, r 50

    Known Will but no copy Will

    If it is known that the deceased made a Will but no copy of the Will can be produced and its contents or tenor cannot be substantiated, an application may be made for an order for a grant of administration, limited until the original Will or a copy be proved (See: Re Wright’s Goods [1893] P 21).

    Original Will found later

    If the original Will is found after the order has been made but before the application for a grant has been lodged, the original Will may be submitted to proof. The practitioner should provide a covering letter with the application for the grant explaining that the original Will has been found.

    If the original Will is found after the grant has been issued, it may be lodged in the proving registry. If the copy Will proved was a true and complete copy of the original, no further action is necessary.

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    Correct as of 1-1-2021

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