Lost Wills are an increasingly common problem. The consequences of losing a Will are significant and can even result in your intended beneficiaries missing out completely.
While many people choose to store their original Will in the safe custody of a professional advisor, others may choose to make their own safekeeping arrangements, such as storing the original at home or at work. For the reasons below, this is not recommended.
Why is the original Will needed?
It is often necessary (or advisable) for the executors of a Will to obtain a “grant of probate” of the Will in order to administer a deceased estate. A grant of probate represents official recognition by the Court that a Will is legally valid and that the person(s) appointed as executor(s) are authorised to deal with the estate assets. In order to apply for probate in the usual course, the original Will needs to be produced to the Court.
Even in cases where probate may not be strictly necessary, the original Will is required in order to deal with the Will-maker’s real estate interests or to make certified copies for production to third parties, such as banks holding funds belonging to the deceased.
If the original Will cannot be found though, a problem arises, especially if its whereabouts are last traced to the deceased person’s possession. In that case, a legal presumption will arise that the deceased person destroyed the original Will with the intention of revoking it. This presumption is rebuttable, meaning it can be overcome but only if sufficient evidence exists to overcome it. In some cases, such evidence may, for whatever reason, be very hard to come by.
What if a copy of the Will exists?
If a copy of the Will exists, it may be possible to obtain probate of the copy. This will however necessitate a Court application which will come at considerable additional cost, effort and delay, particularly if the application is contested by one or more people.
The Court will need to be satisfied of the following matters in order to grant probate of the copy:
- there actually was a Will;
- that Will revoked all previous Wills (if any) made before it;
- the presumption of revocation of the Will by destruction (if it applies) has been overcome;
- there is evidence of the terms of the Will; and
- the Will was properly executed.
Consequences of a lost Will
Aside from the additional cost, effort, delay and stress involved in having to make a Court application, if the Court is not satisfied of one or more of the above matters, this will in most cases result in the deceased person’s estate being administered as though they died without a Will (otherwise known as dying “intestate”).
In that event, the distribution of the estate assets will be determined pursuant to strict statutory formulas (known as the “intestacy rules”) and not pursuant to the directions set out in the deceased person’s (now lost) Will. Clearly, this can have potentially serious consequences for the person’s intended beneficiaries and can in turn lead to unnecessary litigation regarding the division of the estate.
Key takeaways
For the sake of your own intended beneficiaries:
- ensure that you and your executor(s) know the exact location of your original Will;
- if your original Will is currently stored at your home or workplace, consider placing your Will (and other original estate planning documents for that matter) into the safe custody of a professional advisor which offers that facility;
- be sure to regularly review your Will (and other estate planning documents) to ensure it remains appropriate for your circumstances; and
- if you cannot locate your original Will, act promptly to make a new one.
If a Will of which you are an executor or beneficiary cannot be located after the Will-maker’s death, seek legal advice at the earliest opportunity regarding your options and what steps to take.
If you would like advice or assistance regarding a lost Will, please contact our experienced Estates and Succession team.