CONTESTING A WILL WITH WILL CLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – WHAT HAPPENS WHEN THE ORIGINAL WILL GOES MISSING
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss what happens when the original will goes missing
Tracing a Will
There are a number of obvious resources – see for instance:
Tracing a Will – Will Claim Solicitors
One should also consider writing to local Solicitors (in particular those the deceased may
have used in the past), advertising in the Solicitors Gazette and/or conducting a “Certainty”
Will search:
Is it possible to reply on a copy Will?
The short answer is yes; it is possible to rely on a copy of a Will where the original has gone
missing. In fact, this is not uncommon and a procedure is available via rule 54 of the Non Contentious Probate Rules, which is probably worth reciting here:
The Non-Contentious Probate Rules 1987 (legislation.gov.uk)
Grants in respect of nuncupative wills and copies of wills
54.—(1) Subject to paragraph (2) below, an application for an order admitting to proof a nuncupative will, or a will contained in a copy or reconstruction thereof where the original is not available, shall be made to a registrar.
(2) In any case where a will is not available owing to its being retained in the custody of a foreign court or official, a duly authenticated copy of the will may be admitted to proof without the order referred to in paragraph (1) above.
(3) An application under paragraph (1) above shall be supported by an affidavit setting out the grounds of the application, and by such evidence on affidavit as the applicant can adduce as to—
(a)the will’s existence after the death of the testator or, where there is no such evidence, the facts on which the applicant relies to rebut the presumption that the will has been revoked by destruction;
(b)in respect of a nuncupative will, the contents of that will; and
(c)in respect of a reconstruction of a will, the accuracy of that reconstruction.
(4) The registrar may require additional evidence in the circumstances of a particular case as to due execution of the will or as to the accuracy of the copy will, and may direct that notice be given to persons who would be prejudiced by the application.
Rule 54 then raises what is likely to be the key hurdle to overcome, which is that the absence of the original Will in the possession of the testator (the person who made the Will) before his/her death, leads to a rebuttable presumption that he/she destroyed it with the intention of revoking it. Destruction of the Will by the testator revokes it (s. 20 Wills Act 1837):
Wills Act 1837 (legislation.gov.uk)
Rebutting the presumption that a lost Will (previously in the possession of the testator) was revoked by the testator.
For a neat discussion on the law, the reader is referred to Jones v Tracey and others [2023]
EWHC 2242 (Ch):
Jones v Tracey & Ors [2023] EWHC 2242 (Ch) (14 July 2023) (bailii.org)
Each case will turn on its own facts and whilst the burden of proving the original Will was not revoked by destruction falls on the person seeking to rely on a copy of Will, this may not tell the whole story. In Jones Master Marsh mentions (in his words “curiously”) that “the Court is required to consider what weight is to be given to the presumption”.
This does not appear to me to be a curiosity at all. Most people will understand at a basic level that if an original Will is destroyed (which is unfavourable) an earlier Will is likely to prevail or the rules of intestacy. If, for example, an individual who was substantially (or completely) disinherited by the latest Will was living with and looking after the testator for a period before his/her death and that subsequently, the unfavourable Will which was in his/her possession can no longer be found, that might raise a red flag and reduce the weight of the presumption.
If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.
We provide details about our no win no fee arrangements at https://www.willclaim.com/no-
win-no-fee/.