What happens if we can’t find a copy of the will?
It must be the most commonly used title for articles and blog posts about wills and probate, but here the cliche is apt. There are all sorts of clever things lawyers can do in relation to estate planning and succession, but often overlooked by clients is one of the simplest: where is the will? Who has access to it? What if it is not found? Or if it is destroyed?
We have come across a number of cases just recently where there is a strong suspicion that a will has been destroyed by someone who stands to gain either from intestacy or an earlier will – or even from a later will hastily concocted.
The deceased is sadly no longer around to speak for themselves and the allegation of destroying a will is so serious that it cannot be made without strong grounds. Mere suspicion does not get you far. Also, any court proceedings in that regard will be very costly, risky, time-consuming and stressful.
Perhaps a will was drafted so as to exclude someone who would benefit under an intestacy. Maybe that someone has been able to find out they are excluded and also where the will is kept. Clearly it is risky for them as someone else may have a copy. But they may be confident there is no copy, and having destroyed the will, they will inherit under the intestacy rules.
Perhaps the deceased prepared a new will, reducing the entitlement of a particular beneficiary, but the old will still exists. The beneficiary finds out, ensures the old will is still available and destroys the new one shortly after the testator passes away.
Perhaps the deceased had a will but prepared a new one shortly before their death. Relatives suspect duress, or that the new will has been forged in some way. Although it would not on its own be sufficient, the old will might be useful evidence towards a case that the new one should not be accepted. But suddenly, no one seems to be able to find the old will and memories of what they were told are hazy and in any case are not strong evidence.
Perhaps the deceased had already given assets to one child and had prepared a will leaving the bulk of the estate to their other child or children. If the will were to disappear, that first child receive a share under the intestacy rules, thereby reducing the share of the other child or children.
In all of these cases, it is enormously risky – and indeed criminal – to destroy a will, but it is surprising how often suspicion of such a thing arises. Each of the examples above have arisen in cases we have dealt with recently.
On more than one occasion, we have been instructed by a relative who says that another relative was at the house within hours of the deceased passing away and they have no idea what documents were taken. Sometimes there is a strong suspicion of this but no evidence at all, but even with evidence how can you prove wrongdoing? Maybe they had a good reason to visit the house. In every case, whilst there may have been little trust between these relatives, those instructing us are shocked at this turn of events.
All of these problems fall away if copies of the will are distributed to a number of people and the original lodged with a solicitor.
If you would like to prepare a new will; need assistance with estate planning generally; find yourself in a situation similar to those above; or simply need advice as to any risks such as those in the examples above, please contact us for an appointment.
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