Missing Wills – All Is Not Lost

A missing principal will can bring an otherwise straightforward executry to a standstill. Where the deceased has left a will, the executors are required to apply for Confirmation (the Scottish equivalent of probate), and to submit the principal will, or an extract registered copy (registered after death), with their application for Confirmation. It is the grant of Confirmation which provides the executors of the estate with the legal entitlement to deal with the estate property and assets.

What happens if the principal will cannot be found?

The consequences may be significant, particularly if there is a prior will in different terms, or the distribution under the laws of intestacy (where there is no valid will) would differ from that set out in the missing will. But all is not lost. You may be able to ask the court to ‘prove the tenor’ of the lost will as a means of reviving it with the same force and effect as the original will.

The action can be raised in either the sheriff court or the Court of Session by the executor(s) or a beneficiary under the lost will.

What needs to be proven?

In broad terms, before an action to prove the tenor can be successful, the person bringing the application must establish, on the balance of probabilities:

1. The terms (or tenor) of the will
2. The execution (i.e. signing) of the will
3. The circumstances of the loss

If there is a copy of the signed will, tests 1 and 2 should be relatively straightforward.

The court can consider wills which have been lost and not copied but the proof of the terms of any such will, and its execution, becomes much less straightforward, and the court will likely need to look to extrinsic evidence

Test 3 can be more challenging, and the court may require to hear evidence as to how the will came to be lost. Affidavit (sworn statement) evidence is required. In the 2022 case of RW v JW, the principal will was held by a firm of solicitors, who misplaced it during an office move. A copy was available and the lost will’s terms were reproduced in the court papers. The sheriff pointed to inconsistencies between an affidavit lodged with the court as to the circumstances of the loss and supporting emails. A hearing was fixed by the sheriff to ascertain more about the loss.

The sheriff was clear that the court will not “rubber stamp” any action seeking to prove the tenor of a will, even where it is unopposed. The sheriff stated – ‘The court is entitled to be satisfied about the loss which remains an essential component of the procedure notwithstanding the ease of copying or reproducing the missing document electronically. There must be an intelligible explanation for the loss justifying the grant of a decree declaring the terms of the missing deed’. After hearing evidence from those involved, the sheriff was satisfied decree should be granted, and an order that the will was in terms of the copy will was issued, thereby allowing the executor to apply for confirmation.

As well as the circumstances of the loss, if a principal will was in the possession of the deceased and cannot be found, those seeking to prove the tenor of the will must also establish that the will had not been revoked by the deceased before their death.

It is also worth noting that, even if the tenor of a will is proven, this does not prevent a challenge as to the validity of the will, for example based on capacity or undue influence. For more information about challenges to wills, please see our article here.

This article reflects the position in Scots law. We have experience in successfully proving the tenor of lost wills in the Scottish courts and can advise on the steps that need to be taken before an action can be raised. The decision in RW v JW is a useful reminder that the court will not simply grant an application, even if it is unopposed, and may order a hearing where the circumstances of loss are unclear or inconsistent. Taking early advice can reduce delay and cost and improve the prospects of proving the tenor to allow Confirmation to be applied for.

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.