Hi All, i really appreciate all the help given on this platform.
I am doing an online probate application, client provides me with a photocopy of will and not original, when i asked where is the original they said this is all they have.
I then contacted the firm that drafted the will to see if they had access to the original but they have confirmed that they do not as well.
How can i proceed in making a probate application.
Any Information is greatly appreciated.
If the original will was last known to be in the possession of the deceased and cannot be found after the death of the deceased there is a rebuttable presumption that the Will was destroyed by the deceased prior to their death with the intention of revoking the Will.
You will need to check with the solicitors who made the Will is they simple can’t find the original or if the original was sent to the testator after it was made. If the original cannot be located, your client will need to complete a detailed affidavit and submit it to the probate registry explaining all of the circumstances and ask for an order of the probate registry to admit a copy of the Will rather than the original. there may be a precedent in Tristram and Cootes. if your evidence if not sufficiently strong an clear and you cannot rebut the presumption of revocation by destruction, you may have to fall back on the intestacy rules.
I presume that you have already carried out a search with Certainty but if not you certainly need to do so. Incidentally I believe I am correct in saying that you cannot do an online application in these circumstances.
Patrick Moroney
Following up on Sarah Arundel’s comments, if the will was last traced into the possession of the testator, and they have at any time since then been without capacity there is a presumption that if the will cannot be found it was destroyed by the testator whilst they lacked capacity. Again, this is a rebuttable presumption, but I understand one that is difficult to rebut without a witness to the destruction.
Whilst not necessarily viewed as “client friendly”, I wonder if many firms insist on seeing the original will at the outset, so as to avoid wasting unnecessary time and expense if it transpires the “client” has only a copy and not the original will. This would also allow for any peculiarities in the will, such as it being in separate pages or there being staple holes, to be identified and the necessary action taken (with the expectations of the client and beneficiaries being appropriately managed).
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I have recently had to apply to have a copy Will admitted to Probate. It was by no means straightforward.
The deceased had made his Will himself and posted the original to his solicitor for safe-keeping. Among the deceased’s papers was a letter to him from the solicitor acknowledging receipt of the Will. There was also a letter to him from the firm in question a few years later telling him that the firm had been taken over by another firm and that his Will would be held by the firm taking over their practice. After he died that firm said that they did not hold the Will. I can only assume that in the process of the handover of the documents the deceased’s Will was lost. I prepared a detailed Affidavit and submitted it to the Probate Registry.
As the Will had been lost by a firm of solicitors, I thought that the process would be reasonably straightforward, as it was clear that the deceased had not been in possession of the original Will himself and had posted it to his solicitor soon after he had signed it. Despite this, the Probate Registry asked me who would be entitled on intestacy and also asked for confirmation that anyone prejudiced by the proof had been given notice.
The deceased was an elderly unmarried gentleman without issue or sibling and his parents had predeceased him, so the entitlement on intestacy would be traced through his uncles and aunts. The Executors knew that his mother had only one sibling who had predeceased the deceased without issue, so there was no surviving kin on his mother’s side. They managed to find a first cousin on his father’s side whose name was in the deceased’s address book. That cousin put the Executors in touch with his sister and a set of cousins of whom he was aware and I wrote to all the “traced cousins” explaining the position. None of them objected and in fact the cousin whom the Executors had managed to contact wrote to me to say that he approved of the proving of the copy Will, as that was what the deceased wanted.
I then wrote to the Probate Registry explaining about the cousins who had been traced and who had not raised any objection to the proving of the copy Will and that one of them had actively supported the proving. I also pointed out that the traced cousins had told the Executors that there was another branch of cousins who had not been in contact since before the War. I was then very pleased to receive from the Probate Registry a letter telling me that the Registrar had ordered that the Will be provided in accordance with the copy that I had provided.
It was a long-drawn out process but at least the application for the Grant is proceeding at present . I am sure that in your estate the Probate Registry will also ask for details of those who would be entitled on intestacy.
Cliona O’Tuama
Solicitor