Lost or missing original will

This is a really important question and the answer has significant practical and legal consequences.

The presumption where an original will cannot be found:

Where a person who made a will has died and the original will was last known to be in their possession but cannot be found after death, there is a well-established legal presumption that the testator destroyed the will with the intention of revoking it. This presumption dates back centuries and remains firmly part of the law of England and Wales.

The effect of this presumption is that, unless it is rebutted, the deceased is treated as having died intestate, meaning their estate would be distributed according to the intestacy rules rather than the terms of the missing will.

Rebutting the presumption:

The presumption can be rebutted, but the burden of proof falls on the person who wants to rely on the missing will. They must show, on the balance of probabilities, that the testator did not destroy the will with the intention of revoking it.

Evidence that might help rebut the presumption includes the following:

1. Evidence that the will was not in the testator's possession but was held by a solicitor, bank, or other third party, and was lost or mislaid by that party rather than destroyed by the testator.

2. Evidence that the testator continued to refer to the will as being in existence, or spoke of their wishes in terms consistent with the will, right up until death.

3. Evidence of the circumstances in which the will went missing, for example if the testator's home was cleared by someone else, or if there was a house fire, flood, or move to a care home.

4. Evidence that the testator had no reason to revoke the will, for example where the intended beneficiaries remained in close contact and in favour.

5. Evidence that another person may have had access to the will and a motive to destroy it.

Where the original was never in the testator's possession:

If the original will was held by a solicitor or other professional and has been lost or destroyed by that firm, the presumption of destruction by the testator does not apply. In that situation, the person seeking to prove the will is in a much stronger position.

Proving the contents of the missing will:

Even if the presumption is rebutted, there is still the practical difficulty of proving what the will actually said. The court will need satisfactory evidence of the contents. This can come from:

1. A copy of the will, whether a photocopy, scan, or draft.

2. The attendance notes or file of the solicitor who prepared the will.

3. Evidence from witnesses who read the will or were present when it was executed.

4. Evidence from the testator about what the will said, though this is obviously weaker.

A photocopy or other accurate record of the will is by far the most helpful piece of evidence. Without something like this, proving the contents becomes very difficult.

The procedural route:

If someone wants to prove a lost will, they will need to apply to the Probate Registry for a grant of probate in respect of a copy or reconstruction of the will. This is done under what is known as a non-contentious application if there is no dispute, or through the contentious probate process if the matter is contested. In practice, the Probate Registry will usually require an affidavit of plight and condition, explaining what happened to the original, when it was last seen, what searches have been carried out, and exhibiting any copy or reconstruction of the will.

If the application is contested, the matter would proceed in the court under Part 57 of the Civil Procedure Rules and the relevant practice direction.

Practical steps to take now:

1. Search thoroughly for the original, including the testator's home, any safe or strongbox, their bank, their solicitor, the Principal Probate Registry (which operates a will storage service), and any other place the testator may have deposited it.

2. Contact any solicitor who may have prepared the will, as they may hold the original or a copy on file.

3. Obtain the best available copy of the will if the original truly cannot be found.

4. Gather evidence from family members, friends, or professionals about the testator's wishes and the circumstances in which the will went missing.

5. Consider whether there is anyone who might oppose the admission of the copy will to probate, and if so, what their grounds might be.

Key risk to be aware of:

If the matter is contested, probate disputes can be expensive, slow, and emotionally draining. The strength of your case will depend heavily on the quality of the evidence you can produce about the existence and contents of the will, and the explanation for why the original is missing. A clear photocopy coupled with a credible explanation for the loss is a strong position. Vague recollections and no copy is a very difficult one.

If you can tell me more about the specific circumstances, such as where the will was last known to be, whether there is a copy, and who stands to benefit under the will compared with the intestacy rules, I can give you more tailored guidance.