Lost a Will? What this means for probate

While making a Will is a responsible step, it’s important to make sure that the original will is kept somewhere safe and secure.

When you die, if your original Will cannot be found, this can cause problems when dealing with the estate and applying for a grant of probate.

In law, there is a rebuttable presumption that if the original Will cannot be found at the time of the testator’s death, then it has been destroyed by the testator.

The rule applies if the original Will was kept by the deceased or was in their control. It’s important for your executors to make sure they ascertain whether the original Will has been destroyed, if so by whom, or whether it has been lost

Where should you look before assuming a Will is lost?

If you are looking for a missing original Will then you should consider the following:

The solicitor who drafted the Will: Firms can sometimes store the original on behalf of the client.
Banks and building societies: If the deceased held a safe deposit box or used a document storage service.
The National Will Register: This may identify where a Will was registered or stored, including Wills drafted years earlier.
HMCTS Probate Service’s storage facility: Some people choose to deposit their Will here for safekeeping.
Anyone named as an executor: The deceased may have given the original Will to an executor or at least told them where to find it.

If the original Will cannot be found, and there is no evidence to show the testator destroyed it, then you can apply for probate with a copy, but the executors need to explain to the probate registry why the original Will cannot be found.

The application may need to include confirmation from the solicitor that a copy should be kept by the executors in case the original document was lost.

Other evidence may include witness statements from family members or friends proving the copy is valid, or proof that damage to a property, like a flood, ruined the original Will.

What happens if the copy is rejected?

If a Will copy is rejected by the Probate Registry, the rules of intestacy (separate blog) may apply to the estate or a previous will may be considered valid.

In some cases, this can lead to mediation and litigation, with executors disagreeing about whether the Will is valid or intentionally revoked.

Speak to a solicitor

If the original Will can’t be found, our solicitors can help trace the original Will and gather the evidence needed if an application is to be sent to the Probate Registry.

Where a Will is challenged, we can represent your interests in mediation and litigation to help find the solution that best represents the wishes of the deceased.