Ensuring your legacy is secure

Heather Roberts, Associate Solicitor in the Manchester Will, Trust and Estate Disputes team at Irwin Mitchell, explores the issues

Even with today’s technology, lost wills can occur. There is no central will registry and with an ever-changing legal landscape, tracking down an original will can be very difficult – especially if the will was created some time ago. At an already emotional time, you may also be facing a situation where the will designed to safeguard the family home, business or other assets has gone missing.

All reasonable efforts should be made to try and find the original will. “Reaching out to friends, family and advisors is a good starting point and trying to establish a paper trail may also help,” Heather explained. “Finding the original document will save a potentially time-consuming and costly process in the future.”

But what if the original will is nowhere to be found? Being part of the Will, Trust and Estate Disputes team, Heather frequently sees cases involving disputes over missing wills. She advises that finding evidence that the original will was made can be a great help. “If it’s possible to obtain a solicitors’ file, a copy of the will or even a handwritten note made by the deceased concerning the will, an application can be made to the Probate Registry without the original will.”

Where an original will was in the custody of the deceased and cannot be found after their death, there is a legal presumption that the will was destroyed by the deceased with an intention to revoke it. However, this presumption can be overturned in circumstances where evidence exists to suggest that there is a more probable reason for the will being missing. The court will assess the available evidence and ask itself: is the most likely explanation for the will being missing that the deceased destroyed it with the intention of revoking it? In the absence of any evidence, the presumption will apply.

What counts as evidence in this situation? Any sort of records by the deceased or copy wills or oral evidence of conversations with the deceased could be vital pieces of evidence in these situations. “If there’s any sort of letter or record by the deceased about the existence of the will and their intentions for it, then this acts as primary evidence that the original wasn’t destroyed,” said Heather.

This means it may be possible to use a copy of the will for securing probate, but only if the evidence is strong enough. The best way to prevent this scenario would be to store the original will at the solicitors’ office which drew up the document. “It’s the safest place to keep a legal document,” Heather explained, “Plus the solicitor will be very used to the process.”

Telling family, friends or any advisors where your will is stored is helpful for those dealing with your estate. “It’s not a nice thing to think about, but easy access to your will is so important for your family or friends.”

Irwin Mitchell Private Wealth’s Will, Trust and Estate Disputes team has a national capability and can assist you with your concerns over missing wills, as well as a range of other probate, trust and estate disputes.

irwinmitchell.com/private

Contact Heather Roberts e: heather.roberts@irwinmitchell.com t: 0370 1500 100 Ext: 2896