Sunday Express Skeleton 24Th November...
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Original Will Is Missing, How Legal Is The Copy?
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My Uncle collected his Will from the Solicitor before he passed away. We have found a copy of a Will, but do not know if this was the most recent. Can a copy of a Will stand up as a legal Will, or can it be contested on the grounds that it is not the original?
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You will doubtless get more professional advice than mine but I would say no. I don’t think it would even need to be contested....I don’t think that the probate office would accept a copy of a will in place of the actual will. The reason that i am saying this is that a copy offers no proof whatsoever that it expresses the true final wishes of the testator, only that it expressed his wishes at a certain point in time. He might have wanted to die intestate for instance.
This was my view woofgang. The Will is currently not in favour of our side of the family. There are no obvious grounds for contesting the Will, as it was written and witnessed by the solicitors . . . but the fact that my Uncle collected it himself from the solicitor, can only mean that he wished to revoke the Will - therefore at the time of his death, the copy of the Will is not his actual wishes. Presumably the original copy is now destroyed, i would assume that any copies are invalid too. In addition, there is no saying that this 'copy' is a copy of his latest Will. It could be a copy of a previous Will, therefore, no validity to it!
No it doesn’t “only” mean he wanted to revoke his will. He might have wanted to store it somewhere different, to show it to somebody, to employ a different solicitor...and that’s only off the top of my head.
I believe that regardless of what has happened to the original will, a copy of a will on its own has no more validity than a copy of a bank note does so if the will remains lost, the rules of intestacy will apply. The next bit I am not sure about but I will mention it...if someone wanted to contest the rules of intestacy, a copy of a previous will might be used by someone mentioned in it as evidence (but not complete proof) of the testators intentions if they contesting on the basis that the testator had not made proper provision for them.
I believe that regardless of what has happened to the original will, a copy of a will on its own has no more validity than a copy of a bank note does so if the will remains lost, the rules of intestacy will apply. The next bit I am not sure about but I will mention it...if someone wanted to contest the rules of intestacy, a copy of a previous will might be used by someone mentioned in it as evidence (but not complete proof) of the testators intentions if they contesting on the basis that the testator had not made proper provision for them.
A copy of a will (rather than the original) can be submitted to the Probate Registry and an oath sworn regarding the consequences of whether the will is accepted or not.
If the Probate Registry is convinced that the photocopy is definitely a true copy of the most recently made will (and that the original wasn't revoked by the testator, e.g. through destruction) then probate may be granted as normal.
If there is doubt about the will, the Probate Registry may direct that it can only be accepted if all of those affected by it (i.e. its beneficiaries and anyone who would lose out through the intestacy rules not being applied) give their consent to it being accepted.
If that stage is reached, but one or more of those people affected by the will refuse to agree to it being accepted, a court hearing might be required to make a final decision.
The date upon when the will was written, together with the date upon which your uncle collected his will from the solicitor, might well be considered relevant by the Probate Registry and/or court.
For example, if he wrote his will in 2010 and withdrew it from his solicitor's safekeeping in January 2016, a court might well think it likely that he intended to revoke it (either by destroying it or by making a new will). So a photocopy of his 2010 will might not carry very much weight. However a photocopy of a will written in February 2016 would be more likely to be be seen as reflecting your uncle's last wishes.
As a first step, I suggest establishing who would benefit from your uncle's estate if the intestacy rules were to be applied:
https:/
If the position turns out to be no different from that if the will were to be accepted, then you should have no problems with the Probate Registry.
If the intestacy rules and the application of the will's provisions would lead to different distributions of your uncle's estate, you should find out if everyone who would gain or lose is prepared to consent to the will standing. Again, you shouldn't have too many problems if that's so.
However if there's likely to be a dispute it's definitely time to consult a solicitor!
If the Probate Registry is convinced that the photocopy is definitely a true copy of the most recently made will (and that the original wasn't revoked by the testator, e.g. through destruction) then probate may be granted as normal.
If there is doubt about the will, the Probate Registry may direct that it can only be accepted if all of those affected by it (i.e. its beneficiaries and anyone who would lose out through the intestacy rules not being applied) give their consent to it being accepted.
If that stage is reached, but one or more of those people affected by the will refuse to agree to it being accepted, a court hearing might be required to make a final decision.
The date upon when the will was written, together with the date upon which your uncle collected his will from the solicitor, might well be considered relevant by the Probate Registry and/or court.
For example, if he wrote his will in 2010 and withdrew it from his solicitor's safekeeping in January 2016, a court might well think it likely that he intended to revoke it (either by destroying it or by making a new will). So a photocopy of his 2010 will might not carry very much weight. However a photocopy of a will written in February 2016 would be more likely to be be seen as reflecting your uncle's last wishes.
As a first step, I suggest establishing who would benefit from your uncle's estate if the intestacy rules were to be applied:
https:/
If the position turns out to be no different from that if the will were to be accepted, then you should have no problems with the Probate Registry.
If the intestacy rules and the application of the will's provisions would lead to different distributions of your uncle's estate, you should find out if everyone who would gain or lose is prepared to consent to the will standing. Again, you shouldn't have too many problems if that's so.
However if there's likely to be a dispute it's definitely time to consult a solicitor!
goood news there are a few people ( not me ) who know about wills
first of all you will never know if a will is the most recent
( no will is gonna say - yeah well I will make a new will in July next year )
solicitors copies have a stamp on it - saying certified copies
these count as the real thing
and it counts as a proper will
in your explanatory note
you say you may be contesting the will
destroying a will - you have an animus destruendi ( intention to destroy ) and I am not sure if withdrawing it from a solicitor that a judge will accept there was an intention to destroy....[ all you need to do is executre a later will and revoke previous ones ]
erm and that is about it
first of all you will never know if a will is the most recent
( no will is gonna say - yeah well I will make a new will in July next year )
solicitors copies have a stamp on it - saying certified copies
these count as the real thing
and it counts as a proper will
in your explanatory note
you say you may be contesting the will
destroying a will - you have an animus destruendi ( intention to destroy ) and I am not sure if withdrawing it from a solicitor that a judge will accept there was an intention to destroy....[ all you need to do is executre a later will and revoke previous ones ]
erm and that is about it
For a relatively simple question, you are going to need proper legal advice either from a solicitor specialising in this area or on direct access basis from counsel.
If the original of the Will was known to be in the possession of the testator but could not be found at his death there is a legal presumption that the testator destroyed it with the intention of revoking it in compliance with s20 Wills Act 1837. However, like many presumptions - this is rebuttable with evidence. (For example in a 2006 case the original Will could not be found but the Court held that it had been lost or destroyed by accident because the evidence was that the deceased had given copies to others and had discussed his wishes - which appeared in the lost Will - on his death bed - Nicholls v Hudson). In another case, the testator's papers were in such a state of disarray, the Court found that the Will had been lost by accident.
There are other legal doctrines that may also kick in such as dependent relative revocation.
As always, the devil is in the detail so the best bit of advice I can give you is to seek specialist independent legal advice.
Can I also correct Eddie's post. The normal rule on costs is that the loser pays and costs do not come out of the estate. There may be circumstances where the costs will come out of the estate but these are quite limited in their scope.
If the original of the Will was known to be in the possession of the testator but could not be found at his death there is a legal presumption that the testator destroyed it with the intention of revoking it in compliance with s20 Wills Act 1837. However, like many presumptions - this is rebuttable with evidence. (For example in a 2006 case the original Will could not be found but the Court held that it had been lost or destroyed by accident because the evidence was that the deceased had given copies to others and had discussed his wishes - which appeared in the lost Will - on his death bed - Nicholls v Hudson). In another case, the testator's papers were in such a state of disarray, the Court found that the Will had been lost by accident.
There are other legal doctrines that may also kick in such as dependent relative revocation.
As always, the devil is in the detail so the best bit of advice I can give you is to seek specialist independent legal advice.
Can I also correct Eddie's post. The normal rule on costs is that the loser pays and costs do not come out of the estate. There may be circumstances where the costs will come out of the estate but these are quite limited in their scope.
and I always find Barmaid cases edifying reading
( well have you seen the rest of AB today ? )
and Nicholls v Hudson is here
http://
for starters - BAILII will have a copy
( well have you seen the rest of AB today ? )
and Nicholls v Hudson is here
http://
for starters - BAILII will have a copy
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