Naomi Ireson makes a successful application to admit a copy will for probate.
Our successful application
Naomi recently acted for Mrs J in a successful application to the Probate Registry to admit a copy of her late husband’s will.
The original will had been destroyed in a flood shortly after his death, leaving Mrs J with only a photocopy. Her late husband’s daughter challenged its validity, claiming the Will had been intentionally revoked by her father.
Naomi gathered witness evidence, obtaining statements from a neighbour and other close family members who were able to attest to the fact that they saw the damage caused by the flood.
An affidavit was prepared and submitted to the Probate Registry A grant of representation was issued within a matter of weeks allowing the estate to be distributed under the terms of the copy will.
This case illustrates that the Probate Registry will issue a grant on a copy (or a draft) where the original will has been lost or destroyed without the testator intending to revoke it.
The legal issues that need to be addressed when submitting a copy will
There is a legal presumption that a will which was last known to be in the deceased’s possession and cannot now be found, has been revoked. For an application like the one Naomi made, that presumption needs to be rebutted. Naomi was able to successfully do this in the affidavit she prepared for Mrs J.
Among the issues that will normally need to be addressed are:
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Why the original isn’t available (lost, destroyed, never had the original).
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Where the original was kept and who had custody of it.
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The efforts that have been made to find the original where it has been lost.
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Evidence of due execution (ideally a copy showing the deceased’s signature and and those of the witnesses).
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Evidence that the deceased did not intend to revoke the will, and that the original was likely destroyed accidentally, rather than deliberately.
What you should do if you cannot find the original will
If you cannot find the original will of a loved one who has passed away, then do not despair.
In the first instance, you should take the following steps to locate it:
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Search methodically in all likely places.
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Enquire with banks about safe-custody envelopes.
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Contact the drafting solicitor or will-writer to see if they hold it or know where it might be.
If the will cannot be found, or, like Mrs J, you know it has been destroyed, then:
- Check whether you hold a copy.
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If you don’t, then ask the drafting solicitor or will-writer for a copy.
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Once you have a copy then you can apply for probate using that copy. If satisfied, the Registry will issue a grant (though it may be endorsed to show it’s based on a copy).
- The Registry may require a hearing, and if it is not satisfied then the estate may have to proceed on intestacy (or under an earlier will, if one exists).
Contact us for a free consultation
If you have been wondering, ‘Can I obtain probate if I only have a copy of the will?’ and need assistance from solicitors who are experienced in obtaining probate where only a copy will exists, then our team is here to help.
