UNITED KINGDOM / AGILITYPR.NEWS / January 13, 2021 /
By Alexa Payet, Partner at Bolt Burdon and listed specialist in the Certainty Contentious Probate Hub & Area
When an individual dies it is necessary to search their paperwork to establish whether they made a Will and gather information regarding their estate. This is important because the personal representatives of the estate have a legal duty to distribute the estate correctly and could be held financially responsible for any mistakes made through any breach of duty.
Where a Will cannot be found but is believed to exist there are a number of steps that can be taken to help confirm its existence, including (but not limited to) the following:
Presumption of revocation
Where the original Will is known to have been in the testator’s possession before their death and cannot be located afterwards, there is a rebuttable presumption that the Will was destroyed by the testator with the intention of revoking it. If an order for the proof of a copy is to be obtained then this presumption must be rebutted.
Procedure for proving a copy Will
The procedure for proving a copy Will is set out in Rule 54 of the Non-Contentious Probate Rules 1987 (‘NCPR’).
The application is made to the Probate Registry at which the application for the grant will be made and the order can be made by a district judge or registrar.
The application must be supported by evidence in the form of an affidavit (although during the global pandemic the rules have been amended by the Non-Contentious Probate (Amendment) Rules 2020, SI 2020/1059, to provide for the use of witness statements as an alternative to affidavits).
The evidence must set out the grounds of the application and any available evidence that the applicant can adduce as to the Will’s existence after the death of the testator or, where there is no such evidence, the facts on which the applicant relies to rebut the presumption that the Will was destroyed by the testator during his/her life.
The applicant must ensure that the Court has the best available evidence of what happened to the testator’s Will in order that effect may be given to his/her testamentary wishes.
It is important to understand that the applicant does not need to demonstrate that the Will has been lost (it is the fact of its loss which gives rise to the presumption of revocation). Instead, the applicant must establish, by evidence, that the Will was not in fact revoked.
What is a Certainty Will Search and why is it necessary?
A Certainty Will Search searches for Wills that have been registered on The National Will Register (circa 8.7 million Will registrations in the system) and for Wills that have not yet been registered in geographically targeted areas where the deceased used to live and/or work. A Certainty Will Search is extremely important as it will be necessary to notify the probate registry of any persons who would be prejudiced by the grant if the copy Will is proved. If no such person exists then the registrar is more likely to grant the application. Alternatively, if such a person does exist then you should seek to obtain their written consent to the application. The written consents can then be lodged with (or following) your application.
About the Author
Alexa is a Partner in the Disputed Wills and Trusts team at award-winning London firm, Bolt Burdon. Alexa has a particular expertise in Wills, Trusts and Inheritance disputes having undertaken the Association of Contentious Trust and Probate Specialists (ACTAPS) Associate Course. She regularly acts for individuals in bringing and defending claims against estates, including claims for lack of capacity, want of knowledge and approval and undue influence. She also has experience in fraud and forgery claims and professional negligence relating to Wills and trusts, as well as claims under the Inheritance (Provision for Family and Dependants) Act 1975. Alexa can also act for charities in relation to these different types of claims with a view to protecting legacies that have been left to them in a deceased person’s Will so that the deceased’s final wishes achieve their greatest potential.
Alexa’s notable cases:
The National Will Register is The Law Society’s trusted partner and provider of the National Will Register for England and Wales, the Institute of Professional Will Writers and the Society of Will
Writers and Society of Will Writers Scotland. It is recommended by organizations including the Citizens Advice Bureau and Which?.
Used by the public, legal profession, funeral directors, professional indemnity insurers, government agencies and charities to Register Wills and Search for Wills when dealing with a bereavement or writing a Will.
The National Will Register has over 8.7 million Wills in the system currently a large proportion of Wills written by solicitors and Will writers.
The National Will Register provides fundamental protection for executors, beneficiaries and administrators and the probate profession distributing estates by minimising the risk of another Will being discovered after the estate has been distributed or an unknown Will remaining untraced and the estate being distributed without a Will.
In 2020, one in five estates searched against had an unknown Will attached to them, the search prevented incorrect estate distribution. Either being a later Will revoking the Will being used or the estate was believed to be intestate and a Will existed. A Will Search checks to see if a Will has been registered with Certainty the National Will Register and also conducts a nationwide geographically- targeted search for Wills that have not been registered.
Each and every day we obtain human interest stories that demonstrate how Will Registration and Will Search have been able to assist in the Will writing and probate process, please do get in contact should you wish to receive further details.