What happens when a Will is lost?

While they are undoubtedly one of the most important documents a person can sign, it is not uncommon for relatives and executors to be unable to locate a person’s Will after they have passed away.

A lost or misplaced Will can have a profound effect, creating legal headaches, uncertainty, emotional distress and putting the individual’s wishes at risk. However there are significant steps you can take. Here’s what happens when a Will is lost and what you should do.

Initial steps

When a Will is not found immediately, the executor or administrator of the deceased person’s estate should make a concerted effort to locate it. This may involve searching the deceased’s home, contacting their Solicitor or law firm (if they had one), and inquiring with family members and close associates who may know where it is.

They should also try checking digital records such as the person’s computer, email accounts, or cloud storage for any digital copies of the Will and contact the Registers of Scotland to check if the Will was registered there. The Law Society of Scotland may also have information on whether the Solicitor who helped draft the Will kept a record of it.

If you believe a Will was made but cannot be found (rather than destroyed intentionally or not existing in the first place), it’s best to contact a Solicitor as you will need to raise legal action to ‘prove the tenor’ of the Will.

Proving the tenor of a Will

Proving the tenor of a Will is an action to have the court confirm the contents of the missing Will. This requires a formal application that includes evidence that the deceased signed the Will, the contents and terms of the Will and the reason for the Will having been lost or accidentally destroyed.

The court will consider all available evidence and arguments from interested parties and determine if the lost Will is valid. This process can be time-consuming and costly, but where the application is successful, the court will award ‘decree’ which will set out the terms of the Will. This decree is then treated as being equivalent to the original Will.

Intestate succession

When a Will is lost and presumed revoked (that is, intentionally destroyed by the person who made it), the deceased person’s estate is administered according to the rules of intestate succession. Typically, this means that the deceased person’s spouse/civil partner, children, or other close relatives will inherit the estate in accordance with the law.

Preventative measures

To avoid the complications that arise when a Will is lost, it is important to keep the original Will in a secure location and inform trusted individuals of its whereabouts. Additionally, seeking legal advice and assistance in drafting and storing a Will can help ensure that it is properly executed and preserved. It is recommended that your principal Will be kept in safe storage with your Solicitor.