If you have been appointed by a Will as an executor, dealing with the deceased’s affairs can be difficult. Not only do you need to take the time to grieve but the process of identifying their assets and applying for probate can add additional stress at an already challenging time. Locating the original Will can sometimes add to those challenges, but how do you approach probate when a Will is missing?
To obtain a Grant of Probate, the original Will must be sent to the Probate Registry to ‘prove’ the Will. If the Will cannot be found, this can cause delays in administering the estate as the Probate Registry will need additional information from the executors to try to prove the Will in the absence of the original.
Depending upon where the Will was when it went missing it can also lead to a presumption that it had been revoked by the testator. A missing Will can lead to arguments between beneficiaries who may face losing out on an inheritance if the Will cannot be located.
Probate with a Missing Will – Cooper v Chapman
An interesting recent case in the High Court Cooper v Chapman ([2022] EWHC 1000) discusses this issue.
In this case the deceased, Mr Cooper, had children from a previous marriage which had ended in divorce in 2016. After the divorce, he began a close relationship with a childhood friend, Ms Chapman, which had carried on until his death in 2019. In 2009, he had made a Will leaving his estate to his children. His ex-spouse submitted the 2009 Will to the Probate Registry as the surviving parent of the children who were under 18 at the date of death. Ms Chapman objected to the 2009 Will being proved on the basis that the deceased had prepared a new Will in 2018 leaving most of his estate to her.
At the time of the dispute there was no trace of any physical copy of the proposed 2018 Will. The only evidence was a computerised draft. However, Ms Chapman claimed that the computerised copy had been printed out and executed correctly in the presence of two witnesses. She was able to locate the witnesses, who confirmed in court that they had witnessed the signing of the document.
Considering the evidence, the judge concluded that the witnesses were being truthful in their account and that on the balance of probabilities it was likely that the deceased had executed the 2018 Will, despite any physical evidence of the signed 2018 Will remaining. The judge also rejected any presumption that the 2018 Will had been revoked by the deceased on the basis that there had been no significant changes in the deceased’s relationships with the beneficiaries after the Will was executed in March 2018.
This outcome means that Ms Chapman would now become the main beneficiary of the estate rather than the children.
Next Steps
Acting in an estate where the deceased’s Will cannot be found can be difficult for an Executor and, depending on the circumstances, there is the potential that expensive litigation could occur. You should always consider obtaining professional advice to ensure that you are taking the correct steps in administering the estate.
If you are dealing with probate where a Will cannot be located and you have any questions, or if you require assistance with any other probate matter, please do not hesitate to contact our Trusts & Estates Department, Heather Lally or Stephen Mackellar on 01244 354800 or email: Heather.Lally@dtmlegal.com or Stephen.Mackellar@dtmlegal.com
