What Happens If Your Will Is Lost?
Wills should be kept in a safe place. A Lost Will is no good to anyone. You should make sure your Will is accessible to your executors and they know where to find it. However, one of the problems with expat life is the frequency of moving. Whether this is within the country or to different countries. Every move entails a risk of important paperwork, such as your Will, going missing.
It is not just lay people who lose their wills, one of the leading cases in probate law (Sugden v Lord St Leonards 1876) concerns a former Lord Chancellor. Lord St Leonards published a pamphlet encouraging people to register their wills with the central registry, which existed at the time, but did not do so himself.
What Happens if Your Will is Lost?
If the last known location of the Will was in your possession and your executors are unable to find it, the assumption under English Law is you have destroyed it with the intention that you do not want it to be acted on. This is known as revoking your Will. It is then down to the executors to prove otherwise. This can be difficult and advice from a probate professional is the best course of action.
By using a professional Will storage service, in the highly unlikely event of the Will being misplaced, there is no automatic assumption of the Will being cancelled. This is because the location of the Will, when last known, was not in the Testator’s possession, which is one of the conditions for assumed revocation.
Probate courts have been known to act on copies of wills, drafts, or oral retelling of wills using rule 54 of the Non-Contentious Probate Rules 1987. However, supporting documents will be necessary. This could be:
• the file notes of the solicitor or will writer if the Will was professionally prepared.
• A copy of the executed Will.
• A draft of the unsigned Will.
All these documents are useful but not definitive as if the original Will was revoked (cancelled) any copies would also be considered to be revoked, and drafts have no legal standing. However, they can be used to build a picture of the testator’s wishes. Although, this takes time as well as expertise. It is therefore an expensive process compared to using the original Will. If there is no supporting evidence, then there is nothing that the probate courts can use to determine how you wanted your Will distributed. Then the rules of intestacy will apply.
For more information on Wills and Guardianship, contact us.