What do you do when an original will is lost or destroyed?

Wills are significant papers that need to be kept safe and secure. But there can be situations where the original will cannot be found. Paper and digital versions of a professionally written will typically exist on the file of the lawyer who wrote it. In this blog, we’ll give you legal advice to find out if an original, signed will be replaced with a copy?

A will must be signed by the person making it on each sheet in order for it to be legally binding. A copied signature is insufficient. Therefore, a copy cannot be utilised in the place of the principal will without their consent. If you cannot find the original, the “proving the tenor” action is used to obtain a court order. You will need to discuss the terms fo your original will with your probate registry. The signed copy has the same legal effect as the original once the tenor of the copy has been established.

Prove the tenor

Historically, only the Court of Session, Scotland’s highest civil court, could hear actions to establish the tenor of a document. It is now feasible to bring up these actions in the neighbourhood sheriff courts. A Sheriff provided a reminder of the procedure for proving the tenor and what the court needed to be convinced of in order to grant an order in the recent case of RW v. JW. The main will in RW v. JW had been kept by a lawyer. They could not locate the original document that was lost along with safe deposit box of papers when the solicitor moved offices.

Every person who might inherit the deceased person’s estate must be informed of the court action and given the right to object. This includes details of anyone who would benefit from the estate, such as beneficiaries under an earlier will or those who would be entitled to an inheritance if there was no will, in addition to those who would profit under the copy will that is being proved. The applicant will need to submit a notification to the probate registry about making the application to Scotland’s highest legal official, the Lord Advocate, to represent the public interest if no one else has an interest but the applicant.

Requirements to prove the tenor

The Sheriff in RW v. JW reminded the public in a written decision that three elements must be proven before the tenor of a document can be established: the terms of the original document, the fact that the original document was signed, and the reasons why the original will cannot be located.

Proof of a will’s terms and of its signature will be simple to find in cases where it has been duplicated or scanned. The document will be presented and filed with the court in duplicate. In most cases, a formal witness statement describing the copy’s nature and its discovery will also be filed.

Again, a witness statement will typically need to be filed with the court in order to establish the circumstances under which the principal was lost. However, the statement must make sense and adequately detail how the main document came to be lost. The Sheriff in RW v. JW believed there were several discrepancies between the statement and what was stated in copied emails that were also filed with the court. To resolve this, the Sheriff demanded that a second statement be submitted.

The second statement answered all of the Sheriff’s questions, but it also made the Sheriff say that applications for demonstrating the tenor must have a “intelligible reason for the loss” and that the court does not “rubber stamp” them.

Lack of rubber stamping

The case demonstrates that where a principle will is lost and the court is asked to enact a copy, the court will demand a comprehensive and sufficient explanation for the loss of the principal and may pose further questions if it is not satisfied. The court will not automatically grant the requested order without giving the application due consideration, even in the absence of an opposition.

Use a solicitor

We will help you make an application for probate registry in case you can’t find the original will. If you wish to make an enquiry and understand the rules of intestacy, you can make use of legal services and use a solicitor!