Copy of will for probate validity

This is a question that comes up quite often, and the answer depends on the circumstances.

The general position:

The original will is normally required when applying for a grant of probate. The Probate Registry expects the original document to be submitted. A photocopy or other copy will not ordinarily be accepted as a matter of course.

When the original will cannot be found:

If the original will has been lost or destroyed but not intentionally revoked, it is possible to apply for probate of a copy, but this is more difficult and involves additional steps.

There is a legal presumption that if the deceased had possession of the original will and it cannot be found after death, the deceased destroyed it with the intention of revoking it. This presumption can be rebutted, but the burden falls on the person seeking to prove the copy.

To obtain probate of a copy will, the applicant would typically need to:

1. Apply to the Probate Registry with a witness statement or affidavit of plight and condition, explaining the circumstances of the loss or destruction.
2. Provide the best available copy of the will, whether that is a photocopy, a solicitor's file copy, or even a draft or reconstruction.
3. Produce evidence to rebut the presumption of revocation, for example evidence that the will was last known to be held by a solicitor, or was stored somewhere it could have been accidentally lost or destroyed, or that the deceased continued to refer to the will as valid.
4. Provide evidence verifying the copy as a true copy of the original, ideally from someone who saw or prepared the original.

If the evidence is strong enough, the Probate Registry may accept the copy. In more contentious or uncertain cases, it may be necessary to issue a claim under Part 57 of the Civil Procedure Rules in the Chancery Division for the court to pronounce in favour of the copy will. This is known as a probate claim and involves the court being satisfied on the balance of probabilities that the copy represents the deceased's last valid will and that it was not revoked.

Practical considerations:

The strength of the application depends heavily on the quality of the copy and the explanation for the missing original. A solicitor's engrossment copy or an office file copy held by the firm that prepared the will carries significantly more weight than a casual photocopy found among the deceased's papers. Where the original was held by a solicitor's firm that has since closed or merged, or where a house clearance may have led to accidental destruction, there are reasonable explanations that can support the application.

If the will was stored at the Probate Registry itself under their storage scheme, they will have the original and this issue does not arise. Similarly, if it was held by a bank or solicitor and has genuinely been mislaid, an explanation from that institution will be helpful.

Where the estate is straightforward and there is no dispute among beneficiaries, the Probate Registry may deal with this on paper relatively efficiently. Where there are disputes, particularly if someone stands to benefit under the intestacy rules rather than under the will, the matter is more likely to end up before a judge.

So in short, a copy can be enough, but it is not simply a case of submitting the copy instead of the original. There is an additional evidential and procedural hurdle to overcome, and the ease of doing so depends on the circumstances surrounding the loss of the original and the quality of the evidence available.