Missing or destroyed Wills
Undeniably the most important document in the administration of an estate is the Will, as this outlines all of the relevant information needed to administer the estate of the deceased testator. But what happens when the Will cannot be located following death?
Section 20 of the Wills Act 1837 states that a Will may only be revoked by a later Will / Codicil or by destruction of the Will by the testator. So if the testator is known to have made a Will at some point in the past, then effort must be made to try and locate this document, or any copies of it and gather as much information as possible to determine what may have happened to the original document.
The first step will be to contact any professional organisations the testator may have had connections with. This could include a local Will writer or solicitor, or a bank where documents may be held in safe custody.
Sometimes a photocopy of the original Will may exist, and this can often be sufficient to enable the Will to be proven and Probate granted to the Executors. In such cases, a document known as an ‘Affidavit’ should be prepared. An affidavit is a written statement of fact, sworn under oath. Any person who may have seen the Will, witnessed the attestation, had knowledge of its whereabouts or could specify what may have happened to the Will should swear an Affidavit.
Once as much Affidavit evidence as possible has been gathered, the Executors may proceed with an application for Probate. It is however worth bearing in mind that each case will be judged on the individual facts and the final decision regarding Probate rests with the District Probate Registrar.
Similarly, a Will may have been destroyed accidentally by the testator or another party, without the intention of actually revoking it. Again, if sufficient Affidavit evidence can be obtained then it is possible that an application for Probate can be made.
For further information regarding lost or destroyed Wills then please contact the SWW Trust Corporation.