Are copy Wills valid if the original cannot be found?

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Locating the original version of a Will is not always straightforward, especially if the individual concerned had the Will drawn up a long time before their death, or even if they kept their personal affairs private. The document may have been destroyed by an event such as a house fire. Or it could have been in the custody of a third party who also died before relinquishing its guardianship to someone else.

People tasked with managing the affairs of the deceased are often posed with a host of practical and legal challenges, but the simple fact of not having the original version of a Will to hand where probate is concerned can make the situation even more complex.

So, what can be done if the original cannot be sourced and all that remains is a reproduction or copy? Are there any circumstances where this is acceptable? Let’s discuss:

What should I do if I cannot find the original Will?

It is important to understand that a copy of a Will is not an acceptable alternative from a probate perspective. As such, every effort will need to be made to locate it.

Ask yourself who had the responsibility for storing it? Where, or with whom can the Will last be traced to? Have you discussed the matter with family or friends? Might they have it, or know who does?

Advisable steps might include:

  • The solicitor who drafted the original may be listed on the copy Will, so contact them directly. If the solicitor cannot be found, perhaps because the firm no longer exists, the Solicitors Regulation Authority should be able to confirm who took over the firm;
  • Search at other local solicitors, especially if there are any records existing that the deceased dealt with them on separate issues. The local Law Society may be able to assist with this;
  • Contact national Will registration companies;
  • Engage with the deceased’s bank;
  • Check with the London Probate Registry as they do store some Wills

If all this proves to be fruitless and the original Will still cannot be found, you can apply to have a copy submitted to probate, but this is far from ideal.

In what circumstances can a copy Will be admitted to probate?

It’s rare, but applications to admit a copy of a Will can be made to the probate registry. The application should be made under Rule 54 of the Non-Contentious Probate Rules 1987.

To do this, the Probate Registry will expect a detailed affidavit outlining how the Will came to be lost and exactly what searches have been undertaken to find it. Significantly, they will also need to know the details of anyone who would benefit from the estate if the copy Will is not proven.

There may well be evidence that the deceased made a later Will, so the Probate Registry will need to know any person(s) who would stand to gain if the deceased had died intestate, but would not benefit as much under the copy Will.

What if the original Will was last traced to the testator? 

This is significant. If the last known person to be in possession of the original Will was the deceased themselves, then the presumption is that they had destroyed the Will in order to revoke it.  This presumption is rebuttable.

In such circumstances, the copy Will cannot be admitted to probate. If no other Will can be located, the rules of intestacy will dictate who inherits, and this may not reflect the wishes of the testator.

However, if custody of the Will cannot be traced back to the deceased, then a copy of the lost Will could be presented to the Probate Registry, with reasons as to why the original cannot be found.

Where there is the presumption that the deceased intended to revoke their Will, hence why it cannot now be found, there may still be evidence that this is not the situation at all. State of mind, public or written declarations of intent may still rebut such assertions.

One such example was the case of former Lord Chancellor, Lord Edward St. Leonards in 1876.

Records show that The Lord Chancellor, a former lawyer, kept his Will, along with eight codicils, in a locked box at his house. The box itself was not thought to be particularly secure and a spare key was stored where it could be easily accessed.

Upon his death, the codicils were retrieved from the box but the original Will was found to be missing. The Lord Chancellor’s daughter was able to recount the main detail from the Will, having both read the document herself previously and its contents relayed to her several times by her father.

Claims of destruction with the intention to revoke were rebutted by the Courts on the basis that the Lord Chancellor, with his extensive legal knowledge, wouldn’t simply destroy a Will without also destroying the codicils, or writing a new, revised Will.

What if the Will cannot be found but there is some original evidence of the deceased’s intentions?

Whilst occurring over 140 years ago, the case of the Lord Chancellor still mirrors much of what is seen in modern-day law.

Ideally, of course, an original Will is needed to ensure an application for Probate runs smoothly. However, any legal paperwork which declares intent and can be shown to be an ‘original’ document might still be admissible.

In the case of Whitton v Herman 2016, the only Will that could be located was a copy, but with an original codicil found alongside it.

The deceased, Mr Herman, made a Will in 2003, drafted by Will writers, that left his estate to a number of charities, organisations, and individuals, one of whom was the Claimant.

In 2005, Mr Herman added a codicil to the back of the original Will that increased the Claimant’s share. ‘PTO’ was written on the copy will in the same ink as the codicil.

Mr Herman gave custody of his original Will to his friend, Mr Samuels, but when one of his executors, a Mr Williamson died in 2008, Mr Herman asked for the Will back, informing Mr Samuels that he intended to make a new one. However, on Mr Herman’s death, whilst the original Will could not be traced, the copy Will and codicil were found on his bedside table with the rest of his important papers.

The Court found no evidence that Mr Herman had shown any interest in changing the provision of his Will and codicil following Mr Williamson’s death and held that the copy Will was valid and could be enforced as there was insufficient evidence to presume the intention to revoke it.

The Court further determined that any changes that Mr Herman may have intended when he took back possession of his Will would only have been to replace his executor. It was held that Mr Herman did not intend revoke one Will without having a replacement and no such document could be found.

There are limited circumstances whereby a copy of a Will can be admitted if the original is missing without genuine explanation, and what this case makes clear is that the courts will always require clear evidence of revocation if the original cannot be found.

The matter serves as a stark warning for both regularly updating a Will to best reflect your wishes as and when they change, but also, that simply filing a copy of your Will away in a cupboard and hoping for the best will only cause issues in the long run.

Although there is no obligation, it is sensible to ensure your Will is kept in a secure location that is known to its executors, confirm that the executors are aware of your wishes, and that their details are kept updated should circumstances change.

It is also advisable to keep details of your Will’s whereabouts stored amongst your important papers so that anyone searching it can easily locate it.

If you need advice or support on any matter pertaining to Wills or contentious probate, our experienced team at Buckles are here to help. Please contact us for a consultation.