I can’t find my loved one’s original will, is there anything I can do?

If your loved one has left a will and you are named as an executor, you will usually need to submit the original signed will to the Probate Registry to get a Grant of Probate.

Providing the original document will satisfy the Probate Registry that the will continues to reflect the wishes of the person who has passed away. A person who creates a will (a testator) can revoke it by destroying the original version that they signed. For this reason, the Probate Registry require additional proof of the testator’s wishes if the original will cannot be found. In law, it is presumed that the testator destroyed their will, with the intention of revoking it if it cannot be found.

If the original will cannot be located immediately, an executor should first make every effort to try to locate it. They should make enquiries with the testator’s family and friends, their professional advisors (such as solicitors and accountants), and their banks and consider a Will Search with Certainty the National Will Register.

If the original will still cannot be located, the executor may wish to consider an application to the Probate Registry under s54 of the Non-Contentious Probate Rules 1987. This application can be used if the executor has a photocopy of the will or strong evidence of the lost will’s contents (if no photocopy can be found).

Such an application is not necessarily straightforward because of the presumption that it has been revoked.  The strength of this presumption will depend on how carefully the testator looked after their original signed will during their lifetime, and may well require a lot of evidence to overcome.

The application needs to be supported by sworn affidavit evidence. This evidence should set out the circumstances in which the original will may have been lost, the efforts made to find it and the facts relied on to counter the presumption that the testator intended to revoke their will by destroying it. This might include evidence that the testator’s wishes never changed and that they continued to have a loving relationship with their proposed beneficiaries, and/or that the testator failed to take great care of their original will during their lifetime.

If no copy of the will can be found, the Probate Registry will require the executors to draw up a reconstruction representing the original will as accurately as possible. This will need to be attached to the affidavit. The executors will need to present strong evidence to satisfy the Probate Registry that the reconstruction accurately reflects the lost will. This evidence might be found in the file of the solicitor who drafted the will, letters from the testator expressing their wishes or possibly some kind of “wish list” found on the testator’s computer.

After the application is submitted, the Probate Registry might come back to the executors requesting further information or requiring that notice be given to those who would lose out if the application succeeds to give them a chance to oppose it. This will usually be those who would be benefit from the estate if there is no will.

If the application is contested by those individuals, the issue will proceed to a Court hearing. The Court will then consider all the evidence and decide whether it is more likely that the testator revoked their will by destruction, or that the will was lost in some other manner proposed by the executors.

If you have concerns about the will of a loved one who has passed away, please do not hesitate to contact a member of our Contentious Probate team.