How do you prove a Will has gone missing or is lost?

What is a Certainty Will Search?

A Certainty Will Search searches for Wills that have been registered on The National Will Register (approx 8.7 million Wills are registered on the system). It also accounts for Wills that have not yet been registered in geographically targeted areas where the deceased used to live and/or work. 

A Certainty Will Search searches for the last Will, or confirms that a Will did not exist, so that the estate can be distributed correctly.

A Certainty Search helps to prevent claims arising from disgruntled beneficiaries due to the incorrect distribution of the estate, should a Will, or a later Will, come to light after the estate has been distributed. 

A Certainty Search is similar to a Section 27 notice, which protects executors by requesting that creditors or debtors come forward, when distributing the estate.

How much does a Certainty Will Search Cost?

A Certainty Will Search can be paid for from the estate (an allowable disbursement), and allows you to search for both registered and unregistered Wills.

What is “presumption of revocation”?

Where an original Will is known to have been in the testator’s possession before their death and cannot be located afterwards, there is a rebuttable presumption that the Will was destroyed by the testator with the intention of revoking it. 

If an order for the proof of a copy is to be obtained, this presumption must be questioned and rebutted.

A Certainty Will Search is very important, as it will be necessary to notify the probate registry of any persons who would be prejudiced by the grant if a copy Will is proved. 

What if I find a copy of the signed Will?

If your search for the original Will is unsuccessful but you have located a signed copy of the original Will, you could be able to submit a copy to be proved by the Probate Registry.

How?

Documentation must be submitted to the Probate Registry, and they will consider the paperwork and either give permission for you to prove the copy Will, or refuse permission.

The Probate Registry will detail their reasons if they do refuse permission. And/or they may request further evidence from the executor(s).

When making the application, the executor(s) must submit an Affidavit. This is a written statement which must confirm (in detail) the circumstances relating to the loss of the original Will. 

It should also include the attempts that the executor(s) made to locate it, and details of anyone who would benefit from the estate if the copy of the Will was not proved (i.e. someone who would benefit under the rules of intestacy)

In some circumstances the Probate Registry may require evidence from the beneficiaries who would inherit under the rules of intestacy, and obtain their consent to prove the copy will. As an executor of a Will you must do all that you can to prove the Will with the Probate Registry.

“I have tried everything and I cannot locate the Will”

Given how difficult it is to find a “lost” Will, I strongly encourage my clients to inform me and their designated executor, trustee, and other trusted individuals of the location of all original estate planning documents. 

If you keep your original Will in a safe deposit box, it may sound obvious, but make sure to transfer ownership of the box and make sure to let your appointed executors know the whereabouts, in order that they may request it’s release in the event of your death.

If you keep your original Will in a safe in your house, make sure you let some family members know where to find the combination (or key). 

You must let others know where your original Will is kept. Otherwise, all your hard work in drafting the Will may be for nothing. An original Will that cannot be found is like no Will at all. 

If you have exhausted all options to locate the original Will (or a copy) and neither can be found, the estate will need to be administered in accordance with the rules of intestacy. These are the inheritance rules that apply when there isn’t a Will.

MTLS offer safe document and Will storage, and we can assist you with Probate, too. For more information please contact us for a FREE CONSULTATION. 

 01604 591242

 mark@mtls.co.uk

 mtls.co.uk