Where there’s a Will… where is it?

Cara Grant, Private Client Partner, writes about the importance of keeping Wills stored securely.

It is not only important to make a will, but also to keep it somewhere safe.

A will can be revoked by making a new will, or by physically destroying it.  For a will to be effectively revoked by destruction, it must be torn or otherwise destroyed with the intention that, by doing so, the will is revoked.

But if an original will can’t be found, how do you know if it has been destroyed, or if it has just been lost?

A recent case highlighted the importance of keeping a will in a safe place.

In the case of Blyth v Sykes, an envelope was found which contained a certified copy of a will that had been signed by the deceased.  The original will could not be found, and it was argued that it must have been destroyed by the deceased.

If it was accepted that the will had been destroyed, the estate would have been administered in accordance with the rules of intestacy (which determine how an estate is to be distributed when someone dies without leaving a will).

The copy will in this case divided the deceased’s estate equally 4 ways between her two daughters, the former husband of one of the daughters and grandchildren from a deceased child.

If it was accepted that the original will had not been destroyed, the former son-in-law would receive a one-quarter share of the estate.  If it was accepted that the will had been destroyed, the former son-in-law would not receive anything at all under the intestacy rules and the other beneficiaries would each receive a one-third share of the estate.

If an original will can be traced to the possession of a deceased person but cannot be found on death, the presumption (in the absence of evidence to the contrary), is usually that the will has been destroyed.

The judge in this case decided that he was not satisfied that the original will had been in the deceased’s possession and that, therefore, it could not have been destroyed with the intention of revoking it.

The provisions of the photocopy of the will were accepted and the estate was distributed in accordance with it.  The deceased’s former son-in-law received a one-quarter share of the estate.

It is not only important to make a will but also to ensure that it is kept in a safe place and if it is revoked by destruction to destroy not only the original will but also all copies of it.

For further advice on wills, probate and powers of attorney contact Cara Grant.

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