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What happens if an original Will is destroyed

When a person has passed away it is sometimes common that their loved ones cannot find the original last Will that they made before their death. Sometimes there may be a copy of that Will but no original.

When making an application to the District Probate Registry for a Grant of Probate, you will need to send along with your application, the original Will and original Death Certificate of the deceased. If you cannot find the Will then this can delay the application process. However, if the original Will has been destroyed then this can cause great difficulties and ultimately it can be left to the District Probate Registry as to whether or not the application can progress on the strength of a copy of that last Will.

If the District Probate Registry determines that the application cannot progress then either a previous Will of the deceased will need to be used or alternatively the estate will have to pass via the rules of intestacy.

If an original Will has been lost there are various different ways in which you can try to locate the missing Will. However, if it is believed that an original Will has been destroyed this can be more complicated. When an original Will has been destroyed it is usually determined that the Will has been revoked. However, it is not an executor’s place to make that decision of course and only a testator or testatrix can revoke an existing Will.

There are instances when an original Will does need to be destroyed, perhaps there has been a change in family dynamic with the introduction of a new child for example. It is important that when revoking an already existing Will that it is destroyed properly. The destruction needs to be obvious in order to show intention. A simple tear is not enough to evidence that intention, the document must be entirely destroyed. Along with the original being destroyed properly, any copies should also be destroyed in the same way so as to prove that the destructions were not accidental.

There are certain instances when a person has died and it is unclear as to the circumstances surrounding the destroying of their original Will. The question that is often asked is: How can you prove whether a person wanted to destroy their Will or the Will of another person rather than it simply being an accident by human error?

In England and Wales, the law presumes that if a Will has been destroyed physically by the testator/testatrix then it was done with intent. Of course, this is only the starting point and the presumption can be evidenced otherwise but it must be satisfactory and hard evidence rather than just speculation. If a Will has been damaged or destroyed, an application can be made to the District Probate Registry for the Wills contents (evidenced by a copy of the Will) to be accepted in the place of the original Will. This process can be quite a testing situation and can take quite a long time to resolve.

We have experience of applying to the District Probate Registry to prove a copy of a Will and if you require assistance with this then please contact our Probate department who will be happy to assist you.

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