Will lost. 8 October 2022 at 9:38AM in Deaths, funerals & probate 11 replies 597 views

grayson

I have another discussion regarding what to do if will is lost in post.
My question is. What happens to my late mum's estate if probate won't be granted without original Will?
 Is it common for probate to be refused in this scenario?

elsien

You would be better off keeping all your questions to the the one thread, to save confusion. 

msb1234

Potentially it will be classed as intestacy. 

https://www.gov.uk/inherits-someone-dies-without-will

user1977

msb1234 said:

Potentially it will be classed as intestacy. 

https://www.gov.uk/inherits-someone-dies-without-will

But wouldn't that require someone to (falsely) declare that the deceased didn't leave a Will?

Malthusian

The wording of the question - "if probate won't be granted without original Will" - implies that the probate registry have been asked to provide a grant of probate based on the copy and refused.
In the OP's particular case it should be extremely unlikely that they refuse. (The original Will has disappeared in the post on its way to the probate registry - and it may yet resurface - so there is no question of whether the testatrix intended to destroy her Will.)
But if they did, that would leave intestacy. 

poppystar

Malthusian said:

But if they did, that would leave intestacy. 

Or return to a previous Will as not accepting the last one means no revocation of any previous Will. 

But I agree this is all highly unlikely with OPs circumstances. If the Will has gone astray however HMRC will expect their procedures for that to be followed. This sadly will almost certainly take extra time so OP would have to lower his expectations of when it would be granted.

Hopefully it will all arrive safely this week OP.

user1977

poppystar said:

Malthusian said:

But if they did, that would leave intestacy. 

Or return to a previous Will as not accepting the last one means no revocation of any previous Will. 

But (similar to my last comment) the previous Will was in fact revoked. You can't undo that.

There'd be scope for all sorts of dodgy dealings if executors could "lose" Wills after death.

poppystar

user1977 said:

poppystar said:

Malthusian said:

But if they did, that would leave intestacy. 

Or return to a previous Will as not accepting the last one means no revocation of any previous Will. 

But (similar to my last comment) the previous Will was in fact revoked. You can't undo that.

There'd be scope for all sorts of dodgy dealings if executors could "lose" Wills after death.

What is the proof it was revoked then if the final Will has been lost? 

If there is no need to provide the final Will to prove the one before was revoked then there is still scope for dodgy dealings by claiming with no evidence that there was a new Will?

Which is presumably why Probate ask to see copies of any previous Will when dealing with a lost one.

user1977

poppystar said:

user1977 said:

poppystar said:

Malthusian said:

But if they did, that would leave intestacy. 

Or return to a previous Will as not accepting the last one means no revocation of any previous Will. 

But (similar to my last comment) the previous Will was in fact revoked. You can't undo that.

There'd be scope for all sorts of dodgy dealings if executors could "lose" Wills after death.

What is the proof it was revoked then if the final Will has been lost? 

If there is no need to provide the final Will to prove the one before was revoked then there is still scope for dodgy dealings by claiming with no evidence that there was a new Will?

Which is presumably why Probate ask to see copies of any previous Will when dealing with a lost one.

Sorry, don't follow. You need to produce the final Will.

I haven't heard of probate asking to see copies of previously revoked Wills, which are even less likely to be available (given that usual advice is for the testator to destroy revoked Wills to avoid confusion).

poppystar

user1977 said:

poppystar said:,

user1977 said:

poppystar said:

Malthusian said:

But if they did, that would leave intestacy. 

Or return to a previous Will as not accepting the last one means no revocation of any previous Will. 

But (similar to my last comment) the previous Will was in fact revoked. You can't undo that.

There'd be scope for all sorts of dodgy dealings if executors could "lose" Wills after death.

What is the proof it was revoked then if the final Will has been lost? 

If there is no need to provide the final Will to prove the one before was revoked then there is still scope for dodgy dealings by claiming with no evidence that there was a new Will?

Which is presumably why Probate ask to see copies of any previous Will when dealing with a lost one.

Sorry, don't follow. You need to produce the final Will.

I haven't heard of probate asking to see copies of previously revoked Wills, which are even less likely to be available (given that usual advice is for the testator to destroy revoked Wills to avoid confusion).

The thread is on a lost will. If it is lost then it isn’t there to produce and therefore to see the previous one was revoked - so how would Probate or anyone know? This is why they have a procedure for dealing with lost wills and this does include being asked to provide a copy of any previous Will. They then make the decision on the basis of all the evidence as to whether the previous Will stands or intestacy will be applied. 

In OP’s case they can submit the photo of the lost Will as part of the evidence but they would need to follow the procedure for declaring a Will lost, it would not be accepted without question in lieu of the original.

Malthusian

poppystar said:

Or return to a previous Will as not accepting the last one means no revocation of any previous Will. 

Quite right. I was about to type "or revert to a previous Will" and then thought "no, hang on, the lost Will would have revoked it". Stopped my train of thought one station too early.
As you point out, if the lost Will doesn't stand then its revoking of the previous Will also cannot stand. 
Of course, if the previous Wills were destroyed - as would have been good practice - then the second-to-last becomes "lost" anyway and we proceed inevitably to intestacy