Dealing with the estate of a loved one is never easy. When grief is already overwhelming, practical and legal issues can add further strain. One of the most common problems faced by families is the discovery that the original will – the legally binding document that sets out the deceased's wishes – cannot be found. This situation often raises urgent questions: what happens if the will is lost, and is a copy sufficient for probate? In the UK, the starting point is clear. Probate usually requires the original will. However, there are circumstances in which a copy can be accepted by the probate registry, provided certain legal hurdles are overcome. Understanding how this works and what steps can be taken is essential for executors and beneficiaries alike.
When someone makes a will, it must be in writing, signed by the testator (the person making the will), and witnessed by two independent adults. The original signed and witnessed document is the definitive proof of the testator's wishes. Without it, the probate registry cannot be sure the copy being presented is accurate and unaltered.
The law takes the view that if the original will was last in the possession of the deceased and cannot be found after their death, it must have been deliberately destroyed by them with the intention of revoking it. This presumption can create major difficulties if the original cannot be located.
Although the presumption of revocation applies, it is not absolute. If a copy of the will exists, whether in paper form, as a scanned image, or held by a solicitor, it may still be possible to obtain probate on the basis of that copy.
To succeed, the executors or those applying for probate must provide sufficient evidence to show that the will was not deliberately revoked but merely lost or destroyed accidentally.
Evidence might include confirmation from the solicitor who prepared the will that they retained a copy and that the deceased never collected the original, or witness statements from family members or friends indicating that the deceased continued to regard the will as valid. Evidence of accidental loss, such as damage caused by a house fire or flood, may also be relevant.
To use a copy of a will for probate, the applicant must make what is known as a probate application with an affidavit of due execution and loss. This involves submitting a copy of the will, whether it is a photocopy or a solicitor's duplicate, and providing a sworn statement confirming that the will was properly executed.
If the original witnesses to the will can be located, their confirmation can provide additional support. The applicant must also provide a detailed explanation of how the original was lost and why it should not be assumed that the deceased intended to revoke it.
The probate registry will then review the application and decide whether there is enough evidence to issue a grant of probate based on the copy. The decision ultimately depends on whether the presumption of revocation has been successfully rebutted.
Attempting to rely on a copy of a will is rarely straightforward. Family disagreements may arise, especially if some beneficiaries stand to gain more under the copy will than they would under intestacy or an earlier will. This often leads to disputes and, in some cases, litigation. The evidential burden is also higher, as the executors must gather convincing documentation and sworn statements to satisfy the probate registry.
There is also the possibility that only part of the will can be proved if the copy is incomplete or unclear. In that case, the unproven part of the estate may fall under intestacy rules. The process can therefore be more costly, as solicitors' fees are often higher when dealing with contested or complex probate applications, and it almost always results in delays.
If the probate registry is not persuaded that the copy accurately reflects the deceased's wishes or that the original was lost unintentionally, it may refuse to admit the copy. In such cases, the estate is dealt with as though the deceased died intestate.
The rules of intestacy in England and Wales determine who inherits in the absence of a valid will. If the deceased was married or in a civil partnership and had no children, the surviving spouse or partner will inherit the whole estate. If there are children, the spouse or partner inherits the first £322,000 of the estate, along with all personal possessions, and half of the remainder, with the children sharing the other half equally. Where there is no spouse or partner, the estate passes to children, or if none exist, to other relatives in a strict order of priority.
These rules do not provide for unmarried partners, stepchildren, friends or charities, which often produces outcomes very different from those the deceased may have intended.
The loss of an original will can cause significant complications, but there are practical steps that can reduce the risk. Storing the original securely is essential. This may mean keeping it in a fireproof safe at home or depositing it with a solicitor, a bank or a professional will storage company.
It is equally important to ensure that executors know where the will is stored.
Registration of the will with services such as Certainty (The National Will Register) can also help. This does not store the will itself but records its location, making it easier to trace. It is sensible to review and update wills regularly to ensure they reflect current wishes, and when making a new will, old versions should be destroyed clearly and intentionally to avoid confusion.
Keeping copies is not a substitute for the original but can prove invaluable as supporting evidence if the original ever goes missing.
The loss of an original will in the UK does not automatically mean that the deceased's wishes will be ignored, but it does create significant legal hurdles. If a copy exists, probate may still be possible, but only if the executors can produce convincing evidence that the will was not revoked.
This often requires sworn statements, witness testimony and careful explanation of the circumstances in which the original was lost.
If the probate registry accepts the copy, the estate can be distributed in line with the will. If not, the rules of intestacy apply, which may result in outcomes that the deceased never intended. For families, the key lesson is clear: safeguard the original will, make sure executors know where it is stored, and keep reliable copies as a precaution. For executors dealing with the loss of a will, early legal advice is essential. The process is complex, but with the right guidance, it is often possible to have a copy admitted to probate.
If you are facing the difficulties of a lost will or need guidance through the probate process, Premier Solicitors can provide the expert support you need. Our experienced team specialises in wills, probate and estate administration, and we understand how stressful these situations can be. We work quickly and efficiently to help you resolve matters, whether that means proving a copy of a will, dealing with disputes, or navigating the rules of intestacy.
For more information, please call us on 01234 358 080 or visit our contact page to send an enquiry form.
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