When someone dies, locating their will is an important first step in administering their estate. A valid will provides clear instructions on how assets should be distributed and who is responsible for managing the process. It also helps minimise uncertainty and reduces the risk of disputes between those involved.
If the original will cannot be found, it can create uncertainty, delay, and potential disagreements among family members or beneficiaries. This can be particularly difficult where there are differing expectations about what the deceased intended. Understanding the steps to take can help ensure the estate is handled correctly and in accordance with the law.
What Happens if a Will Cannot Be Found?
If the original will cannot be located after a thorough and reasonable search, the law may presume that it was intentionally destroyed by the person who made it, with the intention of revoking it. This presumption applies particularly where the will was last known to be in the possession of the deceased. In these circumstances, the estate may be treated as if there is no valid will in place, meaning the intestacy rules will apply.
This can lead to outcomes that differ significantly from what the deceased may have intended, particularly in more complex family situations. For example, unmarried partners, step-children, or close friends would not benefit under the intestacy rules, regardless of the role they may have played in the deceased’s life. It may also result in assets passing to relatives with whom the deceased had little or no contact.
In addition, intestacy can create practical difficulties, such as uncertainty over who is entitled to administer the estate and how assets should be distributed. This can increase the likelihood of disputes and delay the overall administration process.
However, this presumption can be challenged if there is evidence that the will was lost or accidentally destroyed rather than deliberately revoked. Each situation will depend on the available evidence and the specific circumstances surrounding the missing document. This may include evidence of the deceased’s intentions, copies of the will, or information about where it was last known to be kept and who may have had access to it.
Can a Copy of the Will Be Used?
In some cases, it may be possible to rely on a copy of the will where the original cannot be found. To do this, an application must usually be made to the Probate Registry to prove that the copy accurately reflects the deceased’s intentions and that the original was not deliberately revoked. This is often referred to as proving the contents of a lost will or proving a copy will, and requires clear and convincing evidence.
The court will consider a range of evidence, such as copies held by solicitors, draft versions, correspondence, or witness statements from those who were familiar with the will. It may also look at the circumstances in which the will was prepared, how it was stored, and whether there is any indication that the deceased intended to change or revoke it before their death.
If the court is satisfied, it may allow the estate to be administered in accordance with the copy. However, this process can be more complex and time consuming than administering an estate with an original will, and may involve additional legal costs. It can also lead to delays while the necessary evidence is gathered and considered, particularly if there is any disagreement between those involved.
Steps to Take When a Will Is Missing
If a will cannot be found, it is important to carry out a thorough and systematic search. This may include checking the deceased’s home, personal papers, and safe storage locations, as well as contacting their solicitor or any firm that may have prepared the will. Some wills are also stored with professional will storage services or registered with national will databases.
Financial institutions, accountants, or other professional advisers may also hold copies or have records indicating where the original will was stored. Family members or close associates may be able to provide useful information about the deceased’s arrangements.
If the original still cannot be located, legal advice should be sought promptly. A solicitor can help assess whether there is sufficient evidence to prove the existence and contents of the will, assist with any application if needed, and advise on whether the estate must instead be administered under the intestacy rules.
Key Considerations
A missing will can significantly complicate estate administration and may lead to delays, increased costs, or disputes between those involved. Acting quickly to locate the document, preserving any available evidence, and seeking professional advice are essential steps in protecting the estate.
Taking a clear and structured approach can help ensure that the correct legal process is followed and that, where possible, the deceased’s intentions are respected.
We Can Help
Dealing with a lost or missing will can be complex and stressful at an already difficult time. Our private client specialists can guide you through the process, help locate or prove a will where possible, and ensure the estate is administered correctly.
If you are unable to locate a will or need advice on how to proceed, contact us to discuss your situation.
