What happens if a will is lost?
Posted on July 13, 2016
Once a will is made it remains valid until it is intentionally revoked by the will maker. But what happens after the will maker passes away and their will cannot be found? Firstly, the fact that the will is lost does not mean that the will has been revoked.
There are many reasons why a will may be lost. Often it is because:
- it has been misplaced either by the will maker or somebody else;
- it was unintentionally destroyed, for example in a house fire; or
- it was intentionally destroyed by the maker of the will or somebody else who stands to benefit from the will not being in existence.
If the original will has been lost but a true copy of the original is in existence, this copy can be used to obtain a grant of probate. In order for probate to be granted, the executor of the estate needs to prove that:
- the copy of the will is accurate;
- the will was validly signed and witnessed; and
- the will was not intentionally destroyed by the will maker.
If the will was prepared by a solicitor, the executor can obtain a copy of the will from the solicitor’s will file and obtain the details of the signing appointment and the witnesses who witnessed the will maker sign their will. They may also be able to establish what the solicitor did with the original will after it was signed.
However, if these records are not available then this task will be more difficult and the executor could be faced with an extensive task trying to retrace what occurred to the will after it was signed and locating the witnesses.
The executor may also need to obtain consent from anyone who is adversely affected by the lost will being approved. This is usually the deceased’s family who would receive the estate on intestacy.
Possession of the Will
If the will was last known to have been with the will maker then it is presumed that the will maker intentionally destroyed the will and thus revoked it. Therefore, as part of the process of proving the true copy of the will, it needs to be established that the original will was held by someone other than the deceased.
Despite the above procedure providing a resolution to the issue of a lost will, it does not follow that this procedure should be relied upon as a satisfactory method of arranging your affairs. Proving a lost will is a time consuming, labour intensive and costly exercise. Therefore, if you are unsure of the whereabouts of your existing will your family will thank you for ensuring that you either locate your original will or make a new one. The majority of people who make their wills with us keep their will in our deed room. Thus, there is no confusion as to the whereabouts of their will after they die.
If you or someone you know has lost their will, please contact us at Lynch Meyer Lawyers to make an appointment to discuss your options.
