Losing the will: Legal consequences of a missing original

It's not a new problem (and probably not a new pun). It has been around for as long as wills have.  But, in our charity probate team, we are seeing more and more cases where the original will cannot be found. The risk of a will being lost has always been especially high where testators keep wills at home. Storage with a solicitor or other professional - usually the one who prepared the will in the first place - is rightly recommended, but, sadly, even that is far from perfect, as even professionally stored original wills get lost from time to time.

The rise in mergers, acquisitions, closures, office moves and regulatory interventions has probably had a part to play in that. Whenever a professional firm goes through one of those events (or similar), careful attention needs to be given to the wills bank, as it is all too easy for original wills to be lost in amongst the flurry of activity. Most firms do exactly that and consequently manage to keep the wills bank and related records in good order throughout whatever changes they are facing. But, sadly, some firms don't, and many an original will has been lost as a result. 

Lost or destroyed?

When an original will isn't available, we tend to leap to the word "lost". But one has to consider the possibility that it hasn’t been lost, but rather has been destroyed. That then presents a further question, i.e. was it destroyed accidentally or intentionally, and, if the latter, by whom?

The law

The starting point is that, in order for probate to be granted, the original will has to be filed with the probate registry. Where the original is missing, that obviously cannot be done. Rule 54 of the Non-Contentious Probate Rules 1987 allows for probate to be granted in the absence of the original will.

Usually, applications under rule 54 are to prove a photocopy of the will, but the rules do also extend to more uncommon situations, including where there isn’t even a photocopy available. In that situation, a will can sometimes be reconstructed based on evidence of its contents, and then proved by the probate registry in reconstructed form.

It's by no means the case that an application under rule 54 will always be granted. It depends on the evidence. Where an original will cannot be found and was known to be in the custody of the testator, there is a legal presumption that the testator destroyed the original will with the intention of revoking it.

The presumption can be rebutted with evidence to the contrary. There is no such presumption where a will was known to have been stored professionally, but there are often problems with establishing whether that was the case, which in turn can lead to confusion around whether the presumption even applies in the first place. The gathering and assessment of the evidence can be complex, and often with a lot of money at stake.      

The probate registry can only deal with uncontested applications under rule 54. Where there is a dispute, e.g. with one side claiming that the will was revoked and the other claiming that it was simply misplaced, that is a contentious probate matter and is dealt with in the high court if proceedings are necessary.

Notice

Rule 54 states that the probate registrar "may direct that notice be given to persons who would be prejudiced by the application". In lost will cases, the persons prejudiced will invariably be the relatives entitled under the intestacy rules (as, even if lost, the later will would likely have revoked any earlier wills). The use of the word "may" in the rule makes clear that this is at the registrar's discretion and not a blanket requirement, but, in practice, the probate registry takes this seriously and requires notice to be given to those prejudiced in almost all cases. The exception is where the evidence is very strong indeed.

An (extreme) example of such a case would be where the original will was found in the testator's house after death and handed to the solicitor instructed in the estate administration, only for that solicitor's office then to suffer a flood in which the original will is destroyed. If, in those circumstances, the solicitor were to dry off and give a statement saying that they remember having the original will in their own hands after the death and prior to the flood, then the probate registry would probably approve a rule 54 application without notice being given to those prejudiced. Where the evidence leaves any room for doubt at all though, notice will need to be given.

A particular problem for charities

Where charities are beneficiaries of wills, it's often because there are no known relatives, or at least none on the scene. Where this is the case, and the original is not available for probate, it's necessary to perform (and pay for) genealogical research to find the blood relatives entitled under the intestacy rules just so that notice of the rule 54 application can be given to them. It often brings people into the picture who were estranged from the deceased, or, in some cases, didn’t even know the deceased existed.

One would hope that, in such circumstances, the people in question would simply consent to the rule 54 application going ahead, as it's unlikely (or, in some cases, impossible) that the testator's intentions would have been for them to benefit from the estate. But sometimes they don't, and when that happens it adds a layer of difficulty to the application and can even result in a dispute that can only be resolved in the high court.

In view of this risk, it is especially important for charities, when they find themselves in this situation, to engage lawyers to investigate thoroughly and produce the strongest possible evidence for the rule 54 application. The investigation might reveal that the will was revoked (or, perhaps, that was more likely than not the case) in which case it might be only right to hand the matter over to the relatives entitled under the intestacy rules. However, in the majority of cases we see, the balance of probabilities appears to be firmly on the charities' side.    

If your charity is facing a situation involving a lost will, please do not hesitate to get in touch with our charity probate team.