A Grant of Probate from the Supreme Court will generally be required for an executor to deal with the assets of a deceased. Obtaining a Grant involves proving that the last Will of the deceased is valid by producing it to the Court. Where a person dies without leaving a Will, then a Grant of Letters of Administration must be sought. But what happens when the deceased made a valid Will but nobody can find it?
A Missing Will Can Be Proved
Where there is good evidence that the deceased made a Will, executed it properly and never intended to revoke it, a Court can grant Probate. The evidence in many cases will be a copy of the executed Will or unsigned final draft of the Will. Even a reconstruction of the contents of the Will based on other evidence, such as a solicitor’s notes, can be used.
The first port of call will be the solicitor who drafted the Will. At Beger & Co we will always retain a copy of your signed Will.
A client may wish us to retain the original Will, simply keeping a copy. If, for whatever reason, a solicitor does not have a copy of the Will, they will almost certainly have a final draft and be able to provide evidence that the contents were approved by the deceased.
Evidence Needed to Prove the Lost Will
Once the copy or draft is obtained it is a matter of making an application to the Court with evidence from the witnesses to the Will and any other people involved to prove:
- the due execution of the Will;
- the existence of the Will after the death of the deceased, or rebutting any presumption that the Will has been revoked;
- the accuracy of the copy or draft insofar as it reflects the contents of the Will.
Along with the application the executor must seek the consent of all parties who may be prejudiced by the copy or draft Will being accepted as the final Will of the deceased. This may be important if the deceased did not include a family member in their Will. For example, under the rules of intestacy a deceased’s spouse and children will generally benefit from the estate. If the deceased intended for one of their children not to benefit through their Will, it will be in that child’s interest to dispute the validity of any copy and rather seek a finding that the deceased died intestate (without a valid Will).
Keeping the Original Will Safe
In the final analysis, whilst a lost Will can be proved, it is much simpler and less costly and stressful to ensure it never goes missing! A Will should be kept in a safe place with other important documents. A copy of the Will should be kept elsewhere and the location of the original should be kept with the copy (or copies).
For further information please contact Michelle Crichton on 8362 6400 or email Michelle Crichton. Join our mailing list to receive updates and advice on current issues.
