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After a loved one has passed away, one of the first things the family members will need to do is determine if they had a Will.
Family members might have been told where the original Will is stored, but otherwise a Will (or at least a copy) might be found whilst carrying out a search of the deceased’s property. Otherwise, it might be necessary to write to the deceased’s solicitor to find out if they are holding their Will. It is also possible to carry out searches online to try to find out if a Will exists.
But what happens if you know the deceased had a Will, but you cannot locate it anywhere after their death?
If an original Will is known to have been in the deceased’s possession before their death, but cannot be found after their death, in the eyes of the law it is presumed that (in the absence of any clear evidence to the contrary) the Will was destroyed by the deceased with the intention of revoking it.
This presumption of revocation does not apply if the Will was not in the deceased’s possession and was instead being held by a third party, such as a solicitor, for example.
Once a Will is deemed to have been revoked, it is no longer valid, and the revocation would not ‘revive’ an earlier Will. This means that, unless a later Will can be found, the deceased would have died without a valid Will and their estate would pass under the intestacy rules.
If the beneficiaries under the Will would not inherit under the intestacy rules, disputes can often arise, as there may be a disagreement about whether the deceased did in fact destroy the Will, and intend to revoke it, or if actually the Will has simply been mislaid.
If it is determined that a deceased’s last Will was not revoked, but rather had been accidentally lost for example, it is possible for a beneficiary under the ‘lost’ Will to apply to the Probate Registry for an Order allowing a copy of the Will, or a draft of the Will, to be admitted for probate (instead of the original Will). The application will need to be accompanied by an affidavit or witness statement.
If there is no original Will or copy in any form but there is evidence of the content of the Will when it was executed, it is also possible to apply for an Order allowing a reconstruction of a Will to be made. Again, an affidavit or witness statement will also be required.
However, in order to prove either a copy or a draft Will, it is also necessary to set out the evidence that is relied upon to rebut the presumption that the deceased destroyed and revoked the Will.
Often, it can be quite difficult to establish if a Will has been destroyed with the intention that it be revoked, or if it has simply just been lost. Legal advice should be taken at the earliest opportunity, to establish whether you have sufficient grounds to support your assertion.
Case law has shown that the Court will put a lot of weight on the characteristics of the deceased, particularly, how they managed their paperwork. For example, someone who is meticulous with their paperwork and has a very organised storage system is perhaps less likely to have accidentally lost their Will (which might suggest that if it cannot be located, that it has been purposefully destroyed and revoked).
In comparison, somebody who was known to have been careless with their papers, and who didn’t attempt to keep their original Will secure, may have been more likely to accidentally misplace their Will, meaning it may be easier to rebut the presumption of revocation and argue that the Will was just lost, rather than intentionally destroyed.
Of course, this is just one of the factors that the Court will consider, amongst other things, and ultimately, it will come down to the facts of each individual case and the evidence at hand.
If you require assistance regarding a lost or destroyed Will, please contact Olivia Pisapia.
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