If the Will was last known to be in the possession of the person who made it (the testator) and cannot be found on death, then the Will is presumed to have been intentionally revoked by that person.
However, this is not an irrebuttable (absolute) presumption. So, it may be possible to submit a copy of the Will to Probate if sufficient evidence can be produced to prove that the Will was not revoked or that this was not the testator’s intention.
It is important to note that the above does not apply where the Will was last known to be in possession of somebody who is not the testator (e.g. One of the executors, a firm of solicitors or a storage facility). In this instance, unless evidence is put forward to the contrary, there is no such presumption it has been revoked.
Example A: lost Will, which was last known to be in the possession of the testator
In this scenario, there will be a presumption that the lost Will has been revoked. However, it is possible to rebut this presumption where evidence to prove the contrary can be produced. The strength of evidence needed will vary from case to case.
Case Study
Jeremy passed away on 8 November 2024. He had made a Will dated 23 March 2024, the original of which he kept in a drawer in the kitchen with the rest of his important documents. Jeremey was known to be disorganised and often had important documents go missing. He lost his passport and had to order a new one on two separate occasions during the last few years.
On his death, Jeremy’s children, who were named executors of the Will, were unable to find the original copy of the Will in the kitchen drawer. They carried out a thorough search of the house, as well as contacting Jeremy’s friends and solicitor but no one was able to locate the original Will. As far as they knew, Jeremy had not fallen out with anyone since 23 March 2024 and his intentions had not changed, this view was supported by Jeremy’s friends and solicitor.
Jeremy’s solicitor still had a copy of the Will dated 23 March 2024 and, as such, Jeremy’s children were able to submit an application for Probate supported by evidence of Jeremy’s character and intentions provided by themselves, the solicitor and one of Jeremy’s friends who had witnessed the Will.
In the above scenario, there is no evidence to suggest that Jeremy would have wanted to revoke his Will and, therefore, evidence provided to prove the loss of the original Will is explicable and that his intentions hadn’t changed would likely suffice for a copy to be admitted to Probate. Where the facts are more complex, for example, there have been fallings out between family and friends or the testator was known to be extremely careful with their valuable documents, the evidence needed to overturn the presumption would need to be stronger.
Example B: Lost Will, which was last known to be in the possession of somebody who is not the testator
In this instance, the lost original Will does not lead to a presumption that the testator revoked it. Anyone who believes the Will has been revoked would, therefore, need to produce evidence to prove this.
Only the testator can revoke a will (and even then only in specific ways), so even if there is evidence to show that he had given instructions to a third party to revoke the Will (e.g. an email to his solicitor), this would not have the effect of revocation unless other requirements are met.
Such situations can be complex evidentially and require the provision of information from several sources to establish the position.
In addition, the strength of evidence needed will vary from case to case, depending on the background facts and circumstances.