What can you can do if a Will is lost or missing and how this situation can be avoided in the first place?
The loss of a loved one can be painful, frightening, and fraught with confusion. But one particular problem can arise – perhaps the family remembers the deceased having mentioned they had written a Will, but then they realise they were never told where the actual document is stored. Some may even have been told that they would be the Executor of the estate. This is a surprisingly common issue and can be a real worry for those who find themselves in this position.
Central Will registries
Many countries across the world have central Will registries. When a new Will is made, it must be lodged at the registry and recorded as such for it to be valid. This means that, on the death of the owner of the Will (the testator), the death is simply reported centrally and the Will is then made available for the administration of the estate to go ahead.
Here in the United Kingdom, we do not have such an arrangement. A testator is free to store their Will wherever they like. While there are stringent rules for how a Will should be made, there are no requirements to report or record its existence. This means that people have stored their Wills under their beds, in cupboards in attics, and in safes, without ever telling anyone where or maybe even that the Will exists.
The danger with this freedom of choice is that, on death, their estate may be treated as “intestate” (that is when there is an estate with no Will to govern its administration), and it will be administered according to default provisions provided by the rules of intestacy. Without knowing the terms of a Will, there is usually no choice but to go down this route. The rules of intestacy rarely follow what people would like to happen with the distribution of their estate and there is no option to change the beneficiaries or what they receive.
It follows then that not only is it very important to have a proper Will in place, but it is just as important to make sure it is safe and easily locatable. Solicitors and Will writers usually offer to store the originals for their clients for this very reason.
For those who know they are the Executors, they have the worry also of being personally liable. If they proceed with administration without making reasonable enquiries to find the Will, and the Will comes to light and the distribution of the estate has not followed the Will’s terms, financial responsibility for the difference falls on the Executor.
The location of the Will is initially unknown
So what happens when the original Will’s location is unknown, perhaps because the testator opted to store the Will themselves and did not tell anyone where?
In more recent years, a company called Certainty has been attempting to provide a solution to the problem of Wills which cannot be found. Certainty is a national Wills register and is used by most solicitors who offer Will writing services, although use of its services is voluntary.
When a new Will has been made the solicitor will record the name and address of the testator and the date the Will was made with Certainty, along with the details of their firm so they can be contacted if the need should arise. They do not record any of the contents of the Will, so there is no concern on the subject of confidentiality for the testator.
Certainty also offers search functions for both Wills which they have registered and Wills which have not been registered.
Registered Wills can be easily searched for in very much the same way as one would for any other register. The details of the deceased are submitted to a search form and if there is a matching record for a Will, you will be notified and able to contact the relevant firm about retrieving it. Most firms recommend using Certainty’s services for safety and peace of mind.
Unregistered Wills can be searched for at the same time as a registered Will search. This is where Certainty will contact all potential firms and Will writers which the deceased may have used and enquire with them as to whether they hold any information about a Will for them. If any of the firms do turn out to be either holding the original Will or have acted for them for drafting a Will in the past, then contact between the firm and the Executors can be made at that point for the administration to progress.
The original Will cannot be located
So what happens in the situation where an original Will still cannot be located, despite a Certainty search? This does not have to mean that the administration of the estate is doomed to the rules of intestacy!
Perhaps a firm is discovered which has written a Will for the deceased, but then they state that the deceased opted to keep the original Will themselves, rather than store it with them. They state that they do however have a copy of the signed version, as it is commonplace for firms to do after a new Will has been signed. This can still provide a solution to avoiding an intestate estate.
A copy of a signed Will can still be used in an application for a Grant of Probate (known as “proving” a Will in the application). It cannot be a draft or a copy which is unsigned. If the original cannot be found despite the best efforts of the Personal Representatives and they submit a copy for proving, then they must produce an affidavit explaining why it is a copy rather than the original being submitted in the application. The Probate Registry will consider the circumstances surrounding the application, and decide whether or not to issue a Grant or make further enquiries.
Storing your Will with your solicitor
It is generally best overall when a Will is stored with a firm of solicitors and registered as such. While there are ways to avoid the rules of intestacy when an original Will has been lost, it does add to the time and cost in administering the estate. If a testator really does not want to make use of Certainty for whatever reason, then they must make sure they let their family know that they have a Will and keep them fully informed as to where it is.
It is always advisable to seek legal advice if someone passes away and there is no sign of a Will. The personal liability to the Executors means that doing everything they can to locate the original has to be their course of action, and seeking legal assistance is invaluable in this respect. If a copy of a Will is being submitted in an application for a Grant of Probate, then this particularly requires specialist legal expertise. But for those who do find themselves with bereavement and a lost Will, there are ways which can provide a resolution.
For further advice on drafting, registering and storing your Will, please contact a member of our Wills, Tax & Estate Administration Team who will be happy to help. Girlings Solicitors has offices in Canterbury, Ashford and Herne Bay.