Can a Missing Will Still Be Implemented?
Most people who have made a will have done so with the involvement of a solicitor or a will writer, and often the practitioner will keep the will in a safe room at their offices. This is not always the case however.
Some individuals choose to keep their will at home, and others make “home-made” wills which often end up in a drawer or filing cabinet untouched for years. Some testators do change their minds about inheritance of course and it is by no means uncommon for people to update their wills every few years.
However things can become difficult when a will is lost. The original document should be presented to the District Probate Registry when seeking a grant of probate (which will allow the named executor to administer the estate and implement the terms of the will). Section 20 of the Wills Act 1837 provides that a will is considered revoked if it is formally revoked by virtue of another will or deed, or if it is destroyed with the intention that it will no longer apply. If the original will was last traced to the testator’s possession but cannot be found, the presumption of revocation usually applies, which is to say that the Court will presume that the will has been destroyed by the testator himself/herself.
The presumption of revocation can be rebutted however if there is “clear and satisfactory” evidence of the circumstances (as the Court finds them) which suggests that the testator did not intend to destroy their will. The burden of proving this is on the individual who seeks to “propound” the will. This was the case in Jones v Tracey & Others  EWHC 2242 (Ch), in which the executor of the estate of the late Mr Turner applied to have a copy of his last known (and only) will approved. Mr Turner lived on a farm and owned a considerable amount of land. He had not married and had no children, and his executor was only able to locate a copy of his will leaving his whole estate to two of his close friends. He had a sister, Linda, with whom he had been estranged for a considerable period of time. Linda lived abroad.
As the original will could not be found, the presumption would be that it had been destroyed and thereby revoked by Mr Turner. This would have meant that under the rules of intestacy (i.e. automatic inheritance when no will has been made, pursuant to the Administration of Estates Act 1925, Mr Turner’s sister would inherit everything. The executor however was not convinced the will had been destroyed. He knew Mr Turner to be very disorganised with paperwork (his home office was described as “chaotic”) and Mr Turner’s relationships had not changed between the date of the will being executed and the date of death – he remained close friends with the beneficiaries he had chosen and had not rekindled his relationship with his sister.
Mr Turner’s sister tried to argue that the presumption of revocation could apply. Her arguments were not accepted however as many of Mr Turner’s friends gave evidence that his relationships had not changed in the years that followed the will. Things might have been different had Linda been able to present more compelling evidence from her own witnesses, and had she been present at trial. She tried, unsuccessfully, to adjourn the trial based on the fact that she could not travel to the UK due to illness. The Court refused as she had not been able to establish whether she could appear in a Spanish Court (local to where she lived) to give her evidence. The Court therefore considered the witness evidence of Linda and her husband as “hearsay” statements (which are still relevant but carry much less weight as evidence tested by cross-examination). Linda made a further application to the Judge for permission to rely on witness summaries for witnesses who might have spoken in her favour but the Court refused as her solicitors had not made a great deal of effort to obtain witness evidence from them.
The copy will was pronounced as valid, and the estate distributed in accordance with its terms even though the original had been lost. Not only does this decision serve as a useful guide to the circumstances in which the Court will propound a copy will, but it also demonstrates the importance of being present at trial so that your own evidence can be given orally and tested through cross-examination. Without this, the Court is likely to give far less weight to that party’s evidence.
For more information, please contact Lewis Hastie or Joshua Proud at BRM Solicitors on 01143497000.