MISSING WILL FILE: CAN IT HELP YOU CHALLENGE THE WILL? 

When someone dies, most people expect the will to reflect what they knew of that person’s wishes. When it does not, you want to understand why. 

You start digging into how the will was prepared, only to find that the solicitor’s file is no longer there. That can feel like the door closing before you have even started. But the absence of those records is not the setback it might seem if you are considering a missing will file challenge – it could even work in your favour. 

Why solicitor notes matter in will disputes 
The will itself is not the only document that counts. When a solicitor prepares a will, they are expected to keep a file that covers far more than the signed document. That file should include: 

• earlier drafts and copies of any previous wills 
• attendance notes from every meeting 
• a record of the instructions given 
• notes on the testator’s mental capacity 
• evidence of why particular decisions were made, especially where family members were left out or the terms changed significantly from an earlier will 

Together, those documents are the main evidence that the will was made properly and that the person signing it understood and approved its contents. 

Where these records exist and are thorough, they can make a will much harder to challenge. Where they do not, the person relying on the will has more of a problem. Without that paperwork, they cannot easily show the court how it came to be made or why it should be trusted. That is where a challenge starts to open up. 

What happens if records cannot be found 
The Law Society recommends retaining will files for the lifetime of the client and for a period afterwards, but there is no fixed legal requirement and practice varies. Files can be lost, destroyed or incomplete. If you are told the file no longer exists, that is worth investigating rather than accepting at face value. 

The first practical step is a Larke v Nugus request. This is a formal request to the solicitor asking them to provide a written explanation of how the will came to be made, covering who attended, what was discussed, and what steps were taken to confirm the testator’s wishes. 

If the solicitor cannot produce the file or give a satisfactory account from memory, that matters. Courts have been critical of solicitors who relied on vague recollections years after the event rather than records made at the time. In those situations, it can seriously undermine the will’s standing. 

Where records have been mishandled or withheld, it can also influence how the court approaches costs. 

Proving lack of knowledge and approval 
The legal ground most directly connected to this type of challenge is knowledge and approval, whether the person making the will genuinely understood and accepted what it said. 

In Gill v Woodall [2010], the Court of Appeal made clear that simply reading a will aloud is not always enough. Where someone was vulnerable or likely to go along with what was put in front of them, the court may expect clearer evidence that they really understood what they were signing. 

Where the way the will was prepared raises real concern, the court may require those relying on it to show that the person knew and approved its contents. As confirmed in Fuller v Strum [2001], that responsibility can fall on the party seeking to uphold the will. 

A missing file forms part of that picture. It is not enough on its own, but it can add weight where there are specific concerns about how the will was made. What matters is whether the overall evidence points to a clear understanding, or leaves room for doubt. 

What a missing file means for both sides 
For the person defending the will, missing documents can create a real difficulty. Without the solicitor’s notes, attendance records and capacity observations, it becomes harder to show the court how the will was prepared and why it reflects what the person intended. That gap is not always easy to fill. 

For you as the challenger, there are two sides to it. The same records might also have contained material that supported your position – observations about influence, concerns noted at the time, or evidence of how instructions changed.  

That said, where there are already concerns about how the will was prepared, the absence of records can make it harder for those relying on the will to satisfy the court. You do not need those records to raise a credible challenge, but they may be needed to answer it. 

How missing evidence can support a challenge 
The strength of this type of challenge usually depends on what else sits alongside the gap in the evidence. Courts look at the full picture, and a missing file matters most when it combines with other concerns. 

Hawes v Burgess [2013] is a useful illustration of how this plays out in practice. Here, the Court of Appeal overturned a will based on a lack of knowledge and approval where the solicitor’s records were poor, and a beneficiary had been present during the taking of instructions. Neither factor alone determined the outcome, but together they meant the court could not be satisfied that the testator had genuinely known and approved the will’s contents. 

The surrounding evidence that tends to matter most includes:

• Whether the will represented a significant departure from earlier documents 
• Who arranged the appointment and whether the testator had any independent involvement 
• Whether anyone with an interest in the outcome was present at any stage 
• What other records made at the time exist, such as correspondence, earlier drafts or letters 
• Any evidence of the testator’s wishes from conversations or written communications before the will was made

A case built on a missing file alone is unlikely to succeed. A case where the missing file sits alongside a sudden change of beneficiary, a will arranged by someone who stood to gain, and no independent record of the testator’s instructions is a different matter.

Why specialist advice matters for a missing will file challenge 
The absence of a solicitor’s file does not close a challenge down. In some cases, it can open one up. The key question is whether the surrounding evidence is strong enough to build on.  

At Willclaim, we look at what records still exist, what a formal request to the solicitor produces, and how the overall picture holds together. Where the file is missing and other concerns are present, our solicitors will talk it through with you and explain whether there is a realistic basis to take things further. In some cases, we act on a no-win, no-fee basis.  

Get in touch to arrange your free initial call.