Being unable to locate the original will of a loved one can lead to added stress and upset at an already difficult time. It is however a problem commonly encountered. We summarise below steps which can be taken to ensure a reasonable attempt to find the will is made.
The first step should always be to make attempts to locate the original will yourself. Not only will this most likely be the quickest and most cost effective way of proving the deceased's intentions, but evidence of this step is also required should an application be made to court at a later date. Although in theory anyone can search for the deceased's original will, it makes sense for those who consider that they may be appointed as an executor (perhaps the deceased had told them they were). In most cases, where that person isn't a family member it is advisable to liaise with the deceased's family to avoid any potential disputes and unnecessary upset, particularly since access to the deceased's home will almost always be required.
In the first instance, the deceased's home should be thoroughly searched. A particular focus should be on any safe places that the deceased had and where paperwork is kept, such as a study, safe or locked draws. If you find what appears to be a photocopy of a will, you should take steps to find the original.
Enquiries of professionals
If no will or no original will is found in the deceased's home, enquiries should be made of the deceased's solicitors and any other professional advisors with whom the deceased was known to have dealt, such as accountants, financial advisors, banks and any other solicitors that they may have used during their lifetime. Consider enlarging the scope of the search to cover areas where the deceased may have lived previously – did they move following a divorce or change of job? They may well have used solicitors in the process and could have been advised to prepare a will. Contact local will-writers to find out whether they were instructed
Will storage services
It is also advisable to check whether the deceased had deposited their will at a probate registry for safe-keeping, or lodged a record of their will with the online database Certainty. A small fee will be required to check if a will is registered with Certainty, which is currently £45.60 for their most basic search. If you find paperwork indicating that the deceased instructed solicitors who have since merged or closed down, you can contact the Solicitor's Regulation Authority (SRA) which should know where any original wills prepared by the former firm are being kept, or the SRA itself may have the original.
As an extra precaution, adverts calling for anyone knowing the whereabouts of a will can be placed in local newspapers and the legal press.
If a will is found through any of these means, you should consider whether that will is in fact the deceased's most recent will. If it appears to be the case that it is, then the will can be submitted to probate and the estate will be administered in accordance with the terms of the will.
If you are unable to locate an original will
If after completing these searches and enquires a will has not been found, the Estate should be administered in accordance with the intestacy rules (see below). If a will is suspected to be lost rather than having been revoked, and there is clear evidence remaining that proves the testators wishes, an application can be made to the court for this to be proved in place of the original will. The procedure for this order is set out in rule 54 of the Non-Contentious Probate Rules 1987.
The application must be made by the person who is applying for the grant of probate, which is often the executor named in the document in question. This must be supported with sworn a statement of evidence adducing any relevant documentation. This evidence should broadly include:
1. the circumstances in which the original will appears lost, including where the will was last seen
2. the attempts and searches that the executors have undertaken to locate it
3. the details of any party who would benefit from the estate if the evidence of the will was not proved. This is primarily focused on parties who would benefit if the deceased died intestate, but either not at all or not as greatly than if the evidence was proved. If those parties do not consent to proving the will based on the evidence submitted, the matter can be referred to the High Court for a ruling.
If it is not possible to succeed in locating the original will or obtaining the sanction of the court in relation to a copy will, the estate should be administered according to the intestacy rules. This is on the premise that the deceased had revoked the will by destroying it.
The deceased's individual circumstances, including whether they were married and how much their estate is worth will determine who can administer the estate, and who will benefit from the estate should the intestacy rules apply. However, broadly speaking only married or civil partners and some other close relatives such as children can stand to inherit under the rules of intestacy. However, a person who falls outside of this category, such as an unmarried partner of the deceased or someone who had been financially maintained by them, can potentially benefit from the estate by submitting a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for financial provision.
Can we help?
If you are either seeking to prove an original will, or believe that the intestacy rules should apply in an estate, it is important to seek legal advice as early as possible to ensure you maximise your chances of success. Our specialist Contentious Trust and Probate Team has extensive experience in this area having acted on both sides of the argument, and would be happy to assist you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.