Is there a will or isn't there?

When someone dies, one of the first questions when considering their estate is whether or not they made a will. Many people will make a will during their lifetime to put in place arrangements for after they have died. Wills are often considered as one of the most important documents a person will hold as, among other things, it can determine:

• who is entitled to administer the estate (the ‘executors’);
• who they wish to benefit (the ‘beneficiaries’);
• their funeral wishes; and
• guardianship of any minor children they have. 

When there is no will

Where someone is thought to have died intestate (i.e. without a valid will), the estate will be administered by the next of kin and distributed subject to the intestacy rules, a set of rules that govern who is entitled the estate when someone dies without disposing of it by will. 

If an estate is distributed on the mistaken belief that a will did not exist, it could mean that the deceased’s wishes are not met and can amount to a breach of duty by the person administering the estate and even personal liability. 

It is therefore imperative that, before rushing to the assumption that there isn’t a will, efforts are made to locate the original document. 

When the original will is missing or lost 

Similarly, there are instances where although a copy of the will can be found, the original cannot be located. This can have practical implications:

When applying for a grant of probate

For an estate to be administered in accordance with the terms of the deceased’s will, the original will must be sent to the Probate Registry in order for them to issue a grant of probate. A grant of probate is a document that confirms the validity of the will and the executors’ authority to act. 

When a grant of probate is not required 

It is also often the case in instances where a grant of probate is not needed to administer the estate (e.g. low-value estates usually less than £5,000) that banks and other financial institutions will require sight of the original will before taking instructions from the executors. 

What steps should be taken to find the will? 

Generally, it is good practice for testators (the person who makes the will) to inform the executors that they have been appointed and the location of the original will for when it is needed in the future. It’s therefore very unlikely a will cannot be located. 

In most cases, once someone prepares a will, the original will be kept for safekeeping: 

• in the strong room of the law firm that prepared it 

When someone instructs a solicitor to help prepare their will, arrangements can be made for the executed document to be stored in the law firm’s strong room. 

Executors are entitled to request the release of the will from the law firm that holds it. To authorise the release, the solicitors will usually ask for a copy of the death certificate and proof of your ID. 

Where the law firm that prepared the will is no longer in business, contact the Solicitors Regulation Authority (SRA). From their records, they should be able to provide information of who took over the firm and where the will is being stored (which may be the SRA itself). 

• among the deceased’s important documents

One of the first places you should search for a will is in the deceased’s home. If someone has made a will, they are likely to have at least kept copy of it for their own records. 

If you can locate a copy of the will, it will contain details of the law firm that prepared it. From this, you can contact the firm as a starting point; they could hold the original or, if not, they may have a record of where the original has been sent. 

• at their bank

In some cases, people opt to keep important documents, such as their will or property deeds, stored with their bank. Similarly to if a law firm held the will, executors would usually be asked to provide a copy of the death certificate and proof of identification before its release. 

Where the will is not held by any of the above, there a number of steps that can be taken:

• Contact the deceased’s regular or local solicitors 

If you know of a law firm that acted for the deceased during their lifetime, for instance, in the purchasing or selling of a property or in relation to their business affairs, it may be worth contacting them to see if their private client team assisted in preparing a will. Similarly, it is worth contacting solicitors local to the deceased’s address to see whether they were ever instructed. 

• Contact the Probate Service 

The deceased may have stored their will with the Probate Service which provides storing facilities for wills for a small fee. 

• Place an advert in the Law Society Gazette

• Instruct a missing will search 

Consider paying a small fee for a company to conduct a professional search of the National Will Register and for wills that have not been registered.

What if the will cannot be found?

There are of course reasons why a will cannot be located. A will does not take effect until death and therefore can be changed or revoked at any time during the testator’s lifetime. There is also the possibility that someone voiced their intention to make a will but never got around to doing so or simply that it has gone astray.

In the rare cases where neither the original nor copy of the will can be located after searches, it raises the question of whether it has been lost, destroyed or never made. 

The legal presumption

In the event that the deceased is known to have had a will and it cannot be located following their death, a presumption arises that the will was intentionally revoked by destruction.

Of course, this may not always be the case as sometimes wills are simply lost or accidentally destroyed. 
For those seeking to prove the will, it is possible to apply to the court with evidence of the will’s contents to be accepted in place of the original. A grant may be issued on the basis of the evidence, provided the Probate Registry is satisfied that:

1. it is the last will of the deceased; and,
2. the will had not been destroyed by the deceased, thereby rebutting the presumption of revocation. 

This can include admitting a copy, draft or reconstruction of the will, depending on the circumstances. 

Comment 

In many cases, the question of whether a ‘lost’ will has been revoked or not will not cause an issue among family because, for instance: 

1.    the will reflects how the estate would be distributed on intestacy; or, 
2.    the relevant parties are in agreement as to the terms of the lost will and those who inherit as a result of the intestacy rules are willing to vary their inheritance to reflect the provisions contained in the will. 

However, this is not always the case. Where the lost will is at odds with the distribution on intestacy or the relevant parties cannot agree as to the terms of the lost wills, problems can arise resulting in court proceedings. 

Court proceedings

Two recent cases demonstrate the problems that can arise if the family cannot agree as regards distribution of the deceased’s estate.

In Rowe V Clarke [2005] Mr Rowe had been in a relationship with the deceased for some ten years prior to his death in January 2004.

In June 2000, Mr Clarke had made a will in Mr Rowe’s favour and had sent a copy of the same to Mr Rowe’s mother but after his death the original could not be found.

Following his death, Mr Clarke’s brother, Kenneth obtained letters of administration on the basis that Mr Clarke had died intestate. Mr Rowe sought to set aside the letters of administration and obtain a grant reliant on the June 2000 will.

Mr Clarke sought to rely on the legal presumption that as the original will could not be found his brother had destroyed the same with the intention of revoking it. Mr Clarke, who made no secret of his disapproval of homosexuality, also denied that his brother was homosexual and alleged that Mr Rowe had been little more than a lodger or tenant.

Mr Rowe gave evidence that the will had been kept in an old filing cabinet but later moved to an old wardrobe but told the court when he went to look for it after the deceased’s death he could not locate the same. He contended that Kenneth had removed and destroyed the will.

The court accepted the existence of the legal presumption as regards destruction in this case but said it was very weak. Whilst Kenneth had motive and opportunity to remove and destroy the will, there was no positive evidence of the existence of the will at the death of Mr Clarke’s death. The court was not therefore satisfied that the will was in existence at the date of his death.

However, the court went on to consider whether it had been deliberately destroyed by Mr Clarke or simply lost or destroyed without that intention.

The court, accepting Mr Clarke’s continued affection of his relationship with Mr Rowe and his apparent desire to look after him after his death, considered it unlikely he would have deliberately destroyed the will – to do so, would have meant allowing his estate to pass to his brother with whom he was on the most distant of terms and whom he had previously taken formal steps to disinherit.

As to the question of whether the will had been lost or destroyed by Mr Clarke during his lifetime but without any intention to destroy or revoke it, the court considered that this was not only possible but probable. In the context of Mr Clarke’s lack of security as regards how the will was kept, his history of alcohol abuse and his having taken the unusual step of sending a copy of the will to Mr Rowe’s mother, the court found that he had considered this to be sufficient and that was why he was not overly concerned about the security of the original document.

In all the circumstances, the court was persuaded that the will had not been revoked and revoked the letters of administration, pronouncing instead in favour of the 2000 will.

In Re estate of Dean Ashley James Brunt, deceased (probate) Wrangle V Brunt & Another [2020], Winston Wrangle (known as Bob) brought a probate claim seeking revocation of letters of administration issued to the deceased’s mother, Marlene on the grounds that her son, Dean had not died intestate.

Bob was Dean’s uncle by marriage. He had been married to Marlene’s younger sister, Valerie until her death in 2010. Marlene also had two other children, a son, Dale and a daughter, Venetia.

Dean died in tragic circumstances in December 2007. In July 2008, Marlene obtained letters of administration in relation to Dean’s estate on the basis that he had died intestate and as such, she was entitled to inherit his estate. Some ten years later, Bob instructed solicitors to write to Marlene enclosing a copy of a will that he had found dated 2 March 1999. He alleged that Marlene and Dale had been aware of the existence of the will but had chosen to hide or destroy the original. Marlene and Dale, on the other hand, denied the validity of the will and accordingly, the matter came before the court for determination.

Considering the matter in detail, including evidence from numerous witnesses who stated that Dean had told them he had made a will, the court determined that the will was valid and Marlene and Dale had deliberately kept Bob and Venetia in the dark about matters. Accordingly, the letters of administration were set aside and the will was admitted into probate.