If the original will cannot be found, the estate may be dealt with as if there were no will, under the intestacy rules. A copy can sometimes be proved instead, but only with strong evidence and a court order.
Search thoroughly first
It is far easier to find the original will and apply for probate in the usual way. Try everything, and keep a record of what you do:
- Search Certainty, the National Will Register.
- Contact the solicitor or will writer who prepared the will, and the person's bank.
- Ask the Probate Service whether the will was deposited with it for safekeeping.
- Go through all the paperwork in the home, including lofts, drawers and the backs of furniture.
Why a missing will matters
If a will was last known to be with the person who made it, and it cannot be found, the law presumes they destroyed it on purpose to cancel it. How strong that presumption is depends on how the person kept their papers. It can be overcome with evidence (Jones v Tracey [2023] EWHC 2242 (Ch)).
If the presumption is not overcome, the estate passes under the intestacy rules, and may go to relatives the person did not choose. See dying without a will.
Proving a copy of a lost will
Executors can ask a district judge or registrar for an order to prove a copy, or a reconstruction, of the will (Non-Contentious Probate Rules 1987, r.54). The application needs a witness statement or affidavit setting out:
- evidence that the will existed after the death, or facts that overcome the presumption that it was destroyed on purpose;
- the searches made for the original; and
- evidence that the copy or reconstruction is accurate, such as a photocopy or the solicitor's file.
In Jones v Tracey, the person kept his papers chaotically. The court gave the presumption very little weight and admitted copies of the will to probate.
How to stop it happening
Store your will safely and tell your executors where it is. See how to store a will safely.