Lost or Destroyed Wills Solicitors

If an original will has been lost, destroyed or badly damaged, JMW will establish whether it is still valid and how the estate should be administered. Our specialist solicitors advise executors, personal representatives, beneficiaries and family members. We investigate what happened to the original will, gather evidence of the deceased's intentions and advise on whether a copy or reconstructed will can be admitted to probate.

A missing original does not necessarily mean that the deceased's wishes cannot be followed.

We also represent clients where the disappearance or destruction of a will has led to an estate dispute, including disagreements about whether the testator intentionally destroyed the will or whether the estate should instead pass under an earlier valid will or the intestacy rules.

Call 0345 872 6666 or complete our online enquiry form to speak to our Private Wealth Disputes team.

How JMW Can Help

Cases involving destroyed, damaged or lost wills often turn on where the original will was kept, when it was last seen and what evidence exists of the deceased's wishes. We establish these facts and provide clear advice on the steps needed to protect your position.

Our specialist Private Wealth Disputes solicitors have extensive experience handling probate and estate disputes. We advise on:

• Searching for a missing will, including examining the deceased's papers, contacting relevant local solicitors and making enquiries with the National Will Register
• Establishing who had possession of the original will before the deceased's death
• Determining whether the legal presumption that the testator destroyed the will with the intention of revoking it applies
• Gathering strong evidence to rebut that presumption
• Establishing the contents of a lost or destroyed will where only a copy, draft or other record survives
• Applying to the Probate Registry to have a copy, draft or reconstructed will admitted to probate
• Resolving disputes between executors, beneficiaries and other family members
• Advising on professional negligence where a solicitor or will-writing service has lost or destroyed the original document

We build a strategy around the available evidence and the outcome you want to achieve. Where possible, we resolve disagreements through negotiation or mediation. Where the parties cannot agree, we are ready to represent you in court and pursue the steps required to establish which will should govern the administration of the estate.

If a will has been lost or destroyed accidentally by a professional such as a solicitor or accountant, it may be possible to bring a professional negligence claim against that professional. For more information on professional negligence claims, visit our dedicated page.

In cases where a will has been lost, we may be able to locate it on a national database, with the testator’s legal advisers, or if there are any draft copies, a reconstruction may be accepted by the probate registry or court following an application. These applications can be complex and it is important that you seek early legal advice in order to maximise your chances of success.

Meet the Team

Our Private Wealth Disputes team combines specialist knowledge of contested probate with extensive experience resolving disputes over the existence, validity and contents of wills.

Case study

Our Accreditations

The high quality of our advice on wills and trust disputes has earned us accreditation from a number of highly respected industry organisations, including:

• The Legal 500 : JMW is ranked as a Tier 1 firm for contentious trusts and probate in the North West.
• Chambers and Partners High Net Worth Firms: members of our team are ranked Band 1 - the highest possible grade - in the area of wealth and succession planning.
• The Association of Contentious Trusts and Probate Specialists (ACTAPS): membership to this association requires solicitors firms to meet stringent criteria based on their performance in this field.
• Society of Trusts and Estate Practitioners (STEP): this demonstrates our commitment to high professional standards and continued professional development in the area of trusts and estates.
• Special Interest Group for Contentious Trusts and Estates: members exchange technical knowledge on developments in contentious trusts and estates, so we are always best placed to shape best practice and advance thinking across this specialist area of law.

What Happens if a Will Is Lost?

If an original will cannot be located after someone has died, the first step is to establish whether it still exists and where it was last kept. This search will involve the deceased's papers, their solicitor or will writer, the National Will Register and any other firm that may have stored documents on their behalf.

If a will is unregistered, it will not be in the register. In these cases, it may be necessary to contact local solicitors or examine correspondence and other records for contact details relating to the person or firm that prepared the will.

If the original will remains missing but a copy exists, it could still be possible to apply for probate using that copy, and filling in a form on the government portal.

Where an application is made to prove that a copy is valid, evidence will be required explaining why the original cannot be produced. Our solicitors will gather and present the relevant evidence and prepare the application to the Probate Registry on your behalf.

What Happens if a Will Is Damaged or Destroyed?

A damaged will is not automatically invalid. The legal implications depend on what happened to the document and whether the testator intended to revoke it.

Section 20 of the Wills Act 1837 provides for a will to be revoked by burning, tearing or otherwise destroying it where this is done by the testator, or by another person in their presence and at their direction, with the intention of revoking it.

Proving that a will was accidentally destroyed rather than intentionally revoked requires detailed evidence and careful legal argument. Our solicitors understand the nuances of these cases, and will build and present the strongest case available, using the surrounding circumstances, documentary records and witness evidence to support the outcome you are seeking.

What Is the Presumption of Revocation?

If a will was last known to be in the testator's possession and cannot be found after their death, the court will generally presume that they destroyed it with the intention of revoking it. This is known as the presumption of revocation.

The presumption only arises once reasonable searches have been made, and it can be rebutted. The person seeking to rely on the missing will would need to produce evidence that the testator did not intend to revoke it. In Morina v Scherbakova  [2023] EWHC 3253 (Ch), the High Court found the presumption displaced where the evidence showed the original will still existed after the testator's death and had been suppressed by others.

The presumption does not apply in the same way where the evidence shows that the original will was held by somebody else, such as a solicitor. The High Court has confirmed that a will last held by a third party cannot simply be presumed to have been destroyed by the testator.

If a lost will cannot be proved and there is no more recent valid will, an earlier will may govern the estate. If there is no valid will at all, the estate will generally be administered under the intestacy rules.

What Evidence Can Prove a Lost or Destroyed Will?

Evidence may include statements the deceased made about their will, whether they continued to express wishes consistent with it, and whether there's a credible explanation for why the original can't be located.

This can include copies or scans of the will, draft versions, the solicitor's file, and correspondence showing the testator still intended the will to take effect. Witness evidence about where the will was last kept is also valuable, as is evidence that it was held by a solicitor or third party, or that it still existed after the deceased's death. All of this helps rebut the presumption of revocation. Any evidence explaining how it came to be lost or destroyed - a house move, a fire, a flood - will also support the case. The court considers the circumstances as a whole.

We may also investigate whether someone else had access to the deceased's papers, or whether there's evidence of third-party interference.

Does the deceased's mental capacity affect a lost will claim? 

Where a lost or destroyed will is challenged, the deceased's mental capacity when they made it can also become part of the dispute. Banks v Goodfellow remains the established common-law test for testamentary capacity when making a will. It considers whether the testator understood the nature and effect of making a will, their property and the people who might reasonably expect to benefit.

Establishing facts around capacity involves careful assessment of medical records, witness evidence and the wider circumstances of the dispute.

How Do You Prove a Lost or Destroyed Will?

We will usually start by identifying the most recent will and establishing where the original was last located. We then carry out or advise on appropriate searches and gather copies, solicitor records, correspondence and witness evidence.

If the original cannot be found, we assess whether the presumption of revocation applies and prepare the evidence needed to explain the disappearance and prove the will's contents.

An application can then be made to the Probate Registry to admit a copy, draft or reconstructed will where the legal requirements are met. If beneficiaries or other interested parties dispute the application, we manage the contentious probate process and represent you in negotiations, mediation or court proceedings.

The time required will depend on the searches and evidence needed and whether the application is contested. We will explain the process and likely next steps once we understand the circumstances.

What if a Solicitor Has Lost the Original Will?

If a solicitor or another professional was responsible for storing the deceased's original will and it cannot be located, we can first investigate whether a copy can still be proved so that the estate can be administered according to the deceased's wishes.

The loss may also give rise to a professional negligence claim if the professional's failure causes the estate or beneficiaries financial loss. We assess the probate issue alongside any potential negligence claim so that both parts of the problem are addressed.

Q

What happens if the original will cannot be found?

A

You should carry out appropriate searches to establish whether the original will still exists and where it was last held. If it cannot be located, it may be possible to prove a copy or reconstructed will, depending on the evidence available.

Q

Does a copy of a will count if the original is lost?

A

A photocopy does not automatically replace the original will. However, the Probate Registry can admit a copy, draft or reconstructed will in appropriate circumstances where sufficient evidence establishes the original will's contents and explains why it cannot be produced.

Q

What happens if someone deliberately destroys a will?

A

A testator can revoke their will by deliberately destroying it with the required intention. However, destruction by another person does not automatically revoke the will. The precise circumstances and the testator's intention are central to determining the legal effect.

Q

What happens if a will is destroyed in a fire or flood?

A

Accidental destruction does not necessarily prevent the will from being proved. If a copy or other strong evidence establishes its proper execution and contents, an application may be possible to admit it to probate.

Q

Can someone else destroy or revoke your will?

A

Another person can only physically destroy a will as an effective method of revocation where this occurs in the testator's presence and at their direction, with the required intention to revoke.

Q

What happens if a lost will cannot be proved?

A

If the missing will cannot be admitted to probate, an earlier valid will may determine how the estate passes. If there is no other valid will, the deceased may be treated as having died intestate and the intestacy rules will determine who inherits.