Here’s what to do if you’re faced with a missing will. There are many reasons why the will of a deceased person has gone missing, but at a time of upheaval, grief and loss, it can be hard to work out what to do if you discover that the will is missing. However, there are options if you are faced with a missing will.
Missing Will: An Example
A cousin of the deceased person contacted their solicitor when she believed the deceased person’s will had gone missing. The deceased had never been married or had children, yet the cousin had been informed that she was left nothing, as she was only a cousin. She had been in contact with the neighbour of the deceased who claimed he was the power of attorney and therefore had access to the deceased’s property and mail. The cousin then went to visit the house of the deceased and was then challenged by the neighbour as he claimed he was in control of the assets. He also stated that she was not entitled to the property as she was just a cousin. However, the cousin was worried that the neighbour was interfering with the property.
After expressing her fears to her family, she was encouraged to seek legal advice. The legal advice that was given included firstly trying to find the missing will. In most cases, a will is missing because the will-maker has written a simple document that states their basic wishes. They then place this document in a place they feel is safe, however, they mistakenly don’t tell anyone where they’ve placed their will.
The cousin’s solicitors ordered two searches throughout the house yet did not find anything, and it wasn’t until they searched the garage and the rafters of the house that a small will within a tin was found. The cousin was named the sole beneficiary. Her legal representatives were able to obtain a Grant of Probate for the will and then she received their inheritance.
Another example is the estate of Ms Ponikvar, another example of a missing will. She did not have any children or grandchildren but she did have seven siblings, who all died before her. These siblings meant that she had 12 nieces and nephews. When the case was taken to trial, there was evidence that two wills had been created at different dates. But her family couldn’t find the most recent will, even after searching her house.
The court then had to decide whether the will was lost or if she had destroyed the most recent will so that the earlier one could stand. In this instance, the lawyer who had drafted the most recent will had retained a copy and could show the court that the changes made in the most recent will had been done because her appointed executor had passed away. While the new will did cut out some of the beneficiaries of the previous will, they did consent to the new will and it was accepted by the court.
A Missing Will: What to Do
If you’re in a situation where you’ve got a missing will, here’s what to do.
You must first conduct a search to track down the will, and if it cannot be found, the first step is to ascertain if a will ever existed. It’s not uncommon for people to die without a will at all. You can do this by discovering if the deceased ever saw a lawyer or told anyone they had made one. If you think a will existed, then you must decide whether they lost the will or whether it has been intentionally destroyed.
It’s important that throughout the process, you obtain legal advice. As in the first example, there may be someone trying to exploit the will-maker or covering up evidence of elder abuse.
You may need to have the matter heard in court. The court will take a number of considerations into account:
- Did the will ever exist?
- Was the will made to legal standards?
- Did wills exist before the one that is lost?
- Has the residence been searched for the will?
- Is there another accurate copy of the will?
The court may grant you a probate for a copy of the will if the court is able to find that a will existed, that the will revoked any previous wills and that there is evidence to support the will was destroyed by someone other than the deceased and that there was evidence to support the new terms of the will.
The best way to avoid the confusion of a missing will is to draft one under the guidance of a lawyer, and let your loved ones know where your will is located. Each time you update or change your will, make sure you let your family know. This also provides you some protection in case a friend or family member tries to exploit you financially.