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Lost or damaged Will? What can you do?

Lost or damaged Will? What can you do?

In the UK it is a legal requirement that Wills are in hard copy format and properly signed and witnessed.

This is all well and good but what happens when the hard copy is lost or destroyed?

In this post, we’ll let you know what the legal position is if you know a Will has been destroyed or lost.

If you would like to speak to a probate expert, call us free on 08001181603

Need to write a Will? Write your’s on the Smart Will App in 10 minutes for just £19 or £29 for couples.

Making a Will – hard copy only?

In the UK you can make a Will in any way you see fit, whether that be online, on the computer or using a quill pen.

The method of making the Will doesn’t matter but what does matter is that the final version must be in hard copy format and then physically signed and then witnessed.

In most cases, this is little more than a seemingly antiquated and inconvenient fact that people generally think little of but the requirement to have a hard copy can have wider ramifications.

The problem is that the hard copy needs to be stored and this is where issues can arise.

Storing the Will in the house is fine but can end up with the document being lost over the years or even, as in one case we heard of being eaten by mice.

Water damage, damp, mould can all play a part but what if there is a house fire?

It may seem like a smart idea to lodge the Will in a bank safe deposit box but if there is no documentation to show this, or if it is itself destroyed then no-one will know.

If you would like to speak to a probate expert, call us free on 08001181603

Need to write a Will? Write your’s on the Smart Will App in 10 minutes for just £19 or £29 for couples.

What can you do?

The first thing is to tell your executors where the Will is stored and if you move it, update them.

We’d suggest not storing it at home as so many things can happen and the good news is that here at SmartWill we have a Will storage facility.

But if you are the executor and trying to find a lost Will, or if you have one that is clearly damaged then you have a much bigger problem.

In fact, Section 20 of the Wills Act 1837 says that a Will (or Codicil) is revoked if the deceased, or someone acting in his presence and at his direction, destroys the Will with the intention of revoking it.

But in law, the presumption is that if a Will is lost or destroyed then it must have been done by the deceased on purpose. In other words, they have revoked it.

So, for example, if a person burns their Will on purpose in their fire this is exactly the same as it being destroyed in an accidental fire at the home.

In which case it is up to the beneficiaries to prove some knowledge of what was in the document and that the deceased did not intend to revoke the Will at all.

It is, of course, possible that the Will isn’t lost at all, you just can’t find where it is stored in which case it is a good idea to contact the deceased’s solicitor, accountant and bank to find out if anything was lodged with them.

Alternatively, contact the National Will Register to find out if they had registered it with them.

It’s possible that the document may be only partially damaged and the wishes section is legible.

Otherwise, if they have made their Will online, or on their computer, it may be possible to show the draft contents.

These aren’t categorical proof however as a valid Will needs to be signed and witnessed so the issue will still need to be decided by a court.

If you would like to speak to a probate expert, call us free on 08001181603

Need to write a Will? Write your’s on the Smart Will App in 10 minutes for just £19 or £29 for couples.

Missing parts

The problem is that if the Will is not complete it may be that there are parts of the document that are missing.

This is one of the reasons why you should never staple or paperclip anything to your Will that you are removing later because it introduces that element of doubt into the process.

If there is good evidence that the draft Will wasn’t altered and was signed as is then the court will usually accept this. For example, the testator may have discussed the contents with the executor and the witnesses could confirm that they saw the document signed.

However, the more elements that are missing, and the more doubt there is in the validity of the document then the more likely it is that the court will reject an application.

In this case, it may be that an earlier Will would be taken as the current one or alternatively, the person could be ruled to have died intestate.

One of the elements of the SmartWill service that our customers really like is that you can store your signed and witnessed Will with us totally free of charge. This means that you should never have a problem with a lost or destroyed Will.

If you would like to speak to a probate expert, call us free on 08001181603

Need to write a Will? Write your’s on the Smart Will App in 10 minutes for just £19 or £29 for couples.

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