Is a lost will revoked?

A lost will can be a frustrating and worrying situation which naturally bring up lots of questions. This can also lead to disputes, complicating an already complex situation at a difficult and emotional time. You may be an executor who is wondering how to fulfil the deceased’s wishes. On the other hand, you may be a beneficiary worried about your share of the estate.

If you are involved with an instance of a lost will and want to know what that means going forward, Hayley Gaffney, Associate in Coodes’ Inheritance and Trust Disputes Team, explains.

Revoking a will

Firstly, a will can be revoked (cancelled) at any point during the lifetime of the person who made it (the testator or testatrix) provided specific criteria are met.

A will can be revoked by automatic operation of the law which is called involuntary revocation or by a deliberate act of the testator/testatrix (the person who made the will) which is called voluntary revocation.

For example, involuntary revocation takes place when you get married or (since 2005) enter into a civil partnership unless that will is made in contemplation of that marriage/civil partnership. This means any existing will is automatically revoked and if you do not make a new one, the laws of intestacy apply.

Voluntary revocation is when the will is deliberately revoked by the person who made it and this can be done in a number of ways. The most usual is by the person creating a new will which declares the revocation of any previous will(s). Another could be by adding a codicil, which functions as an appendix, detailing your intention to revoke a previous will. Any Codicil, to be valid, needs to be witnessed in the same way that a will is executed.

Alternatively, a will can be revoked by destruction. There are rules as to how, when and who should destroy it for example, to be properly destroyed it should be burned or torn up. Even just destroying it does not necessarily revoke it as, to be valid revocation, the destruction must take place either by the testator/testatrix or in their presence at their specific direction and they must have the intention of revoking it and understand the effect of that revocation. Otherwise, if the criteria is not met, even destroying a will can sometimes not mean it has been validly revoked.  

Only the testator, or a nominated party in his presence at his direction, can revoke a will. As such, revocation can only take place prior to the testator’s death. Additionally, the process needs to be carried out as set out by the law.

So, even if the testator had given a third party instructions to revoke their will by asking them to, if it was not done under the conditions of a voluntary revocation, then it would not be recognised as having been revoked and would still be deemed valid. An example could be telling a loved one to burn the will for them as they didn’t want it anymore or asking a solicitor to destroy it but without them being present.

So what if a will is lost and cannot be found?

If a will’s last known location was in the testator’s possession, is it usually presumed revoked if, following their death, it cannot be located following careful and extensive searches. This is not an absolute presumption and can be rebutted and, again, there are strict requirements to be followed. If that presumption is rebutted and there is evidence that the testator simply mislaid the will and never intended to revoke it by losing it, it can be possible to submit a copy of the will to Probate. Again, there are strict requirements and procedures which must be followed in these circumstances.

Losing a will in another’s possession

If the will was held by a solicitor, friend or loved one and is mislaid, there is no presumption of revocation based on its loss. Unless there is evidence to prove that the will was voluntarily revoked by the testator, it is still deemed valid and there is no effect of the original not being found. A copy of the will can then be submitted to the Probate Registry following a specific procedure for this scenario It is also possible for a will to be reconstructed if no certified copy of the original can be found but there is clear evidence of its contents.

How to deal with a lost will

Situations involving a missing or lost will can be complex, worrying and potentially lead to disputes. Even if the validity or otherwise of a missing will can be agreed, detailed information must be provided and documentation needs to be prepared setting this out with a strict procedure to follow.

The evidence required will vary depending on the circumstances; whether or not there is any dispute over the will; the circumstances surrounding its disappearance or destruction; and the way forward.

If a loved one’s will is lost and you need advice regarding a dispute, the Coodes Inheritance and Trust Disputes team is here to help. Alternatively, if you need assistance with administering an estate where the will has been lost, damaged or revoked, then our Private Client team can assist.