It is a common misconception that if you believe you are likely to be a beneficiary under a deceased’s estate you are entitled to have sight of a copy of the deceased’s will. However, that is not the case.
In England and Wales the law is such that we all have the testamentary freedom to dispose of our estates upon our death as we see fit, subject to the provisions of the Inheritance (Provision for Family & Dependants) Act 1975. This can often mean that testators choose not to share the contents of their wills with their beneficiaries and even if they do a testator can change their will at any time and may not necessarily update their beneficiaries if they do.
It is the responsibility of the executor(s) who has been appointed by the testator in their will to administer the estate and they are the only person entitled to see the will and read its contents. An executor may choose to provide a family member or close friend with a copy of the will and often there is little reason not to do so but they are not legally obliged to do so.
So what then can you do if you want to obtain a copy of the will? I set out below some of the ways in which you may be able to obtain a copy.
Before the grant of probate
As part of their duties to administer an estate, executors must collect in a deceased’s assets, pay any liabilities and distribute the estate in accordance with the terms of the will. To do so, in most cases (although not necessarily all), executors will need to obtain a grant of probate. This is a legal document issued by the Probate Registry from which the executors derive their authority to deal with the deceased’s assets on their behalf.
Prior to the issue of a grant, a standing search can be undertaken. This allows an individual to obtain a copy of the grant once issued and means that it is not necessary to continually search to see if a grant has yet been issued. A standing search expires after 6 months but can be extended for a further 6 months provided that the request to do so is made to the Probate Registry within one month of the expiry date. There is a small fee for each standing search, currently £10.
After the grant of probate
If a grant has already been issued, then it is possible for an individual to obtain a copy of the same together with the deceased’s will (as this has to be lodged with the application for a grant). There is a small fee to provide a copy of any probate record, currently £1.50 per copy document.
If a grant is not applied for or before any such grant is obtained if required, it is possible for a letter to be sent to the will writer seeking information about the preparation and circumstances surrounding the execution of the will. Named after a Court of Appeal case of the same name, a Larke V Nugus letter can be sent by beneficiaries who may have concerns about the contents of the will or its validity.
By way of response to the letter, the will writer should provide a copy of the will together with information as to how it came to be prepared. They will usually also provide a copy of their will file including attendance notes of meetings/conversations with the testator and any other communications with them.
Writing such a letter is another way of being able to obtain a copy of a will and can often also have the added benefit of providing detailed information as regards the execution of the will which can be very useful if consideration is being given as to whether or not to challenge the validity of the will.
If the above options do not produce a copy of the will, then if all else fails, it is potentially possible for a beneficiary to make an application to the Probate Registry under Section 50(2) of the Non-Contentious Probate Rules 1987 for an order that the executors do deliver up a copy of the will. The application must be supported by way of an affidavit explaining why the beneficiary seeks a copy of the will and what steps have already been taken to try to secure a copy by other voluntary means. If the order is granted, the will should then be delivered up to the Probate Registry who will then decide whether or not to allow the beneficiary to have sight of the same.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.