When someone has died, as the surviving relative or spouse, you may be aware that a Will was made, but you are unable to locate the latest Will.
The starting point is to always conduct a thorough search for the missing Will.
Myerson Solicitors' Wills, Trusts, and Probate team discuss where to start looking for a missing Will, what to do if you can't find the original Will, and what happens if you find a copy.
Where should I look for a missing Will?
To start with, it is always a good idea to thoroughly search the deceased's home as this is the most likely place where they would store the Will.
It may be that it is kept together with other important documents or in a safe.
If the Will is not stored at the home, you may find other useful documents that give you clues as to where the Will may be stored.
Friends and Family
The deceased may have left the Will with friends or family members in anticipation of them needing it in the future.
It is always a good idea to speak to the deceased's friends and family as this will certainly help gather more information, and even if they do not have it, they may know who does.
Banks and Building Societies
It was previously very common for banks and building societies to store Wills for their clients; therefore, it may be that it is being held there.
Many people are unaware of banks offering such a service, so we would always recommend that this option is explored.
It is also useful to contact local solicitors as most store wills for free for customers who make their Will through them.
If the deceased holds any correspondence from solicitors about any type of legal matter (such as a house purchase), then it is possible that they may also have a Will.
If the firm of solicitors no longer exists, the Solicitors Regulation Authority (SRA) can be contacted for further information about who took over the firm.
Certainty Will search via the National Will Registry
Currently, there are over 10 million Wills in the National Will Registry, and through this service, a Will search can be conducted.
They can look for Wills that may not have been registered but that are held by law firms in locations associated with the deceased. This can be a nationwide or geographically targeted search.
What if the original Will still cannot be found?
If you know there is an original Will, but it cannot be found, and its last known location was in the deceased's possession, there is a legal presumption that the Will was destroyed and the deceased intended to revoke it.
This presumption may, however, be rebutted by those seeking to benefit under the lost Will if they can produce evidence to show that the Will was not intended to be revoked.
For example, such evidence may include declarations of the testator's unchanged intentions or evidence as to their state of mind.
Suppose, on the other hand, you cannot find a Will after searching and believe that one was not made.
In that case, the estate will usually need to be dealt with as if the deceased were without leaving a Will, and therefore, their estate will be distributed according to the rules of intestacy.
What if I find a copy of the Will?
Sometimes, it may be possible to rely on a copy of a signed Will.
If the original Will is not found, but a signed copy is believed to exist elsewhere, or if it is damaged or destroyed, it may be possible to make an application to the Probate Registry for an Order which allows them to prove a copy, reconstruction or even a draft version instead.
The application can be made under Rule 54 of the Non-Contentious Probate Rules 1987.
The application must be accompanied by an affidavit or witness statement explaining the grounds for the application as well as any evidence to support the existence of the Will.
The applicant must ensure that the Court has the best available evidence of what happened to the
Will to give effect to the deceased's ultimate testamentary wishes.
Proving a copy of Will can be complex, so we would recommend seeking expert legal advice.
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.