Missing wills – all is not lost
In a testate estate, that is, one where the deceased has left a will, the executors are required to obtain Confirmation to the deceased’s estate, and require to submit the principal will, or an extract registered copy (registered after death), with their application for Confirmation. It is the grant of Confirmation which provides the executors of the estate with the legal entitlement to deal with the estate property and assets.
What happens if the principal will cannot be found after someone dies? The consequences may be significant, particularly if there is a prior will in different terms, or the distribution under the laws of intestacy (where there is no valid will) would differ from that set out in the missing will. But all is not lost. There is a court action that can be brought, either in the sheriff court or the Court of Session, as a means of reviving the lost will with the same force and effect as the original will.
The action can be raised by the executor(s) or a beneficiary under the lost will. The defenders to any action are those who have an interest in the will being proven. This will include beneficiaries under the lost will, but also any beneficiaries (if different) under an earlier will, or those who would stand to inherit should the estate be dealt with under the laws of intestacy. Where only the person bringing the action has an interest, the Lord Advocate must be called as representing the public interest.
What needs to be proven?
The 2022 case of RW v JW is a helpful reminder of what needs to be established, on the balance of probabilities, before an action to prove the tenor of a lost will can be successful:
- The terms (or tenor) of the will;
- The execution (i.e. signing) of the will; and
- The circumstances of the loss.
The terms and execution
If there is a copy of the signed will, tests 1and 2 should be relatively straightforward and the copy is lodged with the court papers. If the copy is unsigned, evidence is required that the deceased signed the will.
The court can consider wills which have been lost and not copied but the proof of the terms of any such will, and its execution, becomes much less straightforward. Recourse may be had to extrinsic evidence such as file notes, meeting notes, letters to/from the deceased and draft wills, but the person bringing the action is likely to face challenges in proving the terms and execution of the will to the court.
The circumstances of the loss
Test 3 can be more challenging, and the court may require to hear evidence as to how the will came to be lost. Affidavit (sworn statement) evidence is required. In RW v JW, the principal will was held by a firm of solicitors, who misplaced it during an office move. A copy was available and the lost will’s terms were reproduced in the court papers. The sheriff pointed to inconsistencies between an affidavit lodged with the court as to the circumstances of the loss and supporting emails. A hearing was fixed by the sheriff to ascertain more about the loss.
The sheriff was clear that the court will not “rubber stamp” any action seeking to prove the tenor of a will, even where it is unopposed. The sheriff stated - ‘The court is entitled to be satisfied about the loss which remains an essential component of the procedure notwithstanding the ease of copying or reproducing the missing document electronically. There must be an intelligible explanation for the loss justifying the grant of a decree declaring the terms of the missing deed’. After hearing evidence from those involved, the sheriff was satisfied decree should be granted, and an order that the will was in terms of the copy will was issued, thereby allowing the executor to apply for confirmation.
As well as the circumstances of the loss, if a principal will was in the possession of the deceased and cannot be found, those seeking to prove the tenor of the will must also establish that the will had not been revoked by the deceased before their death.
It is also worth noting that, even if the tenor of a will is proven, this does not prevent a challenge as to the validity of the will, for example based on capacity or undue influence. For more information about challenges to wills, please see our article here.
This article reflects the position in Scots law. We have experience in successfully proving the tenor of lost wills in the Scottish courts and can advise on the steps that need to be taken before an action can be raised. For more information, please contact Stephanie Hepburn, Partner in our contentious executries, trusts and tax team.
The position in England and Wales is more straightforward and we recently advised an executor under an English will on the procedure to be followed. For more information, please contact Emma Read, Senior Solicitor in our private wealth and tax team.