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On the death of a person, locating a Will can be very important. It not only identifies who the deceased chose to appoint to conduct their affairs but to whom their assets would pass. In the absence of locating a Will, the statutory Intestacy Rules provide potentially for a list of different beneficiaries to those the deceased may have intended.
More usually, a search starts where the deceased kept their most important papers. If the Will itself cannot be found, a letter from a firm of solicitors who may have assisted in the drafting of a will may assist and shed light upon who retains the original Will. If unsuccessful, a process of elimination should be followed.
Process of elimination
Using a copy of a Will
If an original Will cannot be found, but an executed copy is located, this may reveal where the original may be held or have been sent. If the original still cannot be located, it may be possible for a copy to be admitted for Probate. This would be entirely subject to the Probate Registry being satisfied on Affidavit evidence that the Testator had not revoked the Will before death.
It would be unusual for a Testator to revoke a Will with the intention that the intestacy provisions should apply. More usually, revocation of a Will would occur with the intention or expectation that the terms of the Will would be replaced. Where the terms and provisions of the deceased's copy Will provides for a reasonable and sensible distribution of the Testator's Estate reflected by the family members and relationships that the Testator had, a copy Will on Affidavit evidence is more likely to be admitted to Probate without contention.
However, where there is dissent within the family a challenge to the Will can occur and delays and costs to the administration process can increase dramatically. This underlines the importance of the safe retention of an original will to avoid these difficulties.
Can I see the Will?
Strictly speaking an individual would only be entitled to sight of the deceased's will once the executors have obtained a Grant of Probate and the will becomes a public document. More usually however provided you are named as a beneficiary within a will the Executors by agreement will often agree to release a copy or as a minimum provide general information as to your inheritance.
You will have the right to be kept informed of the progress of the estate administration once the Grant of Probate has been issued. The Executor(s) will have discretion on how much information and how frequently this is provided as this may impact upon the costs of the administration. Any reasonable requests for information should be responded to.
This article was written by Kerry Hull, Senior Associate in the Contested Wills & Probate Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of August 2020.