I have instructions to administer an estate where the executors are unable to find the original Will. They have a copy only and do not believe there is a later one but cannot find the original amongst the deceased’s belongings. The executors are the stepchildren and under the copy the residuary estate is left to them with a life tenancy to the husband (who is still alive and the step-children’s natural father). It isn’t a taxable estate and the deceased had no natural children, no surviving parents (but does have a brother). Looking at what is involved in obtaining probate on a copy would it not be easier for the husband to apply for Letters of Administration and then do a Deed of Variation in identical terms to the Will assuming the husband & brother are agreeable of course.
I don’t think you can advise your clients to swear in the oath for administrators that the deceased died intestate if the evidence shows that a will was made. The process for proving a copy (assuming the usual searches have been made already) isn’t onerous
Sharon, my firm belief is that if an original Will cannot be located and only a copy can be found on death application MUST be made to the Registrar for probate of the copy. There are points to consider such as the presumption of revocation if the original was known to be in the possession of the deceased before his death. The strength of my belief is supported by the case of Re Ciebrant Decd, Kwawagen v RNLI [2008] EWHC 1268 (Ch) in which a Judge was prepared to find in favour of charities where the existence of a Will was asserted by neighbours but denied by a widow and daughter who alleged that the deceased died intestate.
If the will was in the possession of the testator (and I am assuming that in this case it was) and cannot be located, there is a rebuttable presumption that will was revoked and destroyed within the lifetime of the deceased.
I believe this was established in Patten v Poulton 164 E.R. 626; (1858) 1 Sw. & Tr. 55 and Welch v Phillips 12 E.R. 828; (1836) 1 Moo. P.C. 302, although I do not pretend to have read the cases.
In light of this presumption, I do not think that there is anything wrong with making an application based on an intestacy and doing a deed of variation to recreate the missing will.
However, I would strongly recommend that the deed of variation be executed by all the parties before the application for a grant is made. Someone will inevitably be favoured by the intestacy, and if they back out of the agreement after the grant is obtained, then the parties who lost out under the intestacy may find their subsequent ability to argue that the will was not in fact revoked is greatly constrained.
Thank you for your comments. The Will was indeed last in the possession of the testator. It was a home made job (but pretty good nevertheless). Whilst I have the resources to do the application for probate of a copy I just thought that if the end result were the same then a Deed of Variation would be less time consuming and ultimately less costly for the client. So long as all that would be affected are in agreement (which would also be a point to be covered on an application for probate of a copy).
I can see the attraction in trying to take the simplest route and save costs but unless the potential administrator truly believes the will was revoked as per case law then he is swearing a false oath. If he does believe the will was destroyed and thus revoked then by doing the DOV he is, of course, going against the wishes of the testator even if he regards himself as doing the decent thing by the beneficiaries.
It should also be borne in mind that if, whilst the will was in the possession of the deceased, the deceased at any time lacked testamentary capacity, the presumption is that the will was destroyed whilst the testator lacked capacity and so is not deemed to have been revoked. This is a rebuttable presumption and, if it might apply, then I understand that you would need to obtain evidence that the testator made known that they had destroyed, or otherwise validly revoked the will, during a period in which they had the requisite capacity.
Sharon, I echo much of Taurean’s comments; assuming the testator was of sound mind prior to death and the original will was believed to have been in her possession then the rebuttable presumption is that it has been destroyed with the intention of revoking it.
As such, you should proceed with caution, particularly as you are presumably instructed by the named executors in the copy will who would stand to gain from the proposed variation, to the detriment of husband.
In short there is a potential conflict of interest as between them and husband and the current status quo appears to be with the husband. Therefore, and subject to evidence to confirm that the original will was not destroyed with the intention of revoking it, the clients should be advised of the position. If they maintain that they wish to proceed in having the estate administered in accordance with the copy will then the husband should be advised to seek independent legal advice not least of all to protect you. Of course, and, again, subject to the caveat about any evidence to rebut the presumption, if they are happy to accept that the deceased died intestate then there is no need to refer husband for separate legal advice.