Can The Rules Of Intestacy Be Rebuttable When A Will Is Lost?

The majority of people aged over 55 have made a Will which sets out their wishes on their death. This removes any uncertainty as to what should happen to their estate when they die and avoids the rules of intestacy applying which in some cases could distribute an estate against an individual’s wishes. The general starting point in dealing with a deceased’s estate is to establish whether they left a Will and follow it accordingly.

If a Will is lost and it cannot be found, the rules of intestacy will apply. This remains to be the starting position when the deceased made a Will but this cannot be found on their death. The standard presumption in such case would be that the deceased destroyed the Will with an intention of revoking it. There may however be instances when a Will is lost and an application to have the Will reconstructed for the purpose of administration is necessary. This is when it is believed the deceased wanted their Will to stand on their death.

A lost Will and the rules of intestacy

To make an application, an applicant must apply to the Court for leave for an Order to be granted in respect of reconstructing the Will. An application must be made with an affidavit which sets out the below:

• Proof that a Will was in existence after the deceased’s death, or facts which the applicant relies on to suggest a Will was made and not later revoked (any proof should also confirm the Will in question was executed correctly);
• If it was an oral Will, then the contents of the Will;
• The accuracy of any proposed reconstruction.

If a copy of the Will can be located but not the actual Will, the copy can be relied on for reconstruction. The applicant must still show that the Will was not destroyed by the testator with an intention of revoking it. When considering this, the Court will consider the testator’s character and consider whether it was possible for the deceased to have simply lost or misplaced the Will.

Notice of any application should also be given to anyone whom may be prejudiced by the reconstructed Will. An example of this may be where under the rules of intestacy a person is due to inherit however under the proposed Will, they will inherit less or not at all. It is possible anyone provided with notice may oppose such application and claim revocation in any event. It is worth noting the burden of proof means that anyone challenging an application does not have to prove non-existence of a Will at the time of the deceased’s death, whereas the applicant has to prove its existence.

The starting point before making an application, is for an applicant to carry out certain steps to ensure the Will is actually lost and not held elsewhere. These steps include:

• Make enquiries with friends, family and the deceased’s professional advisors;
• Make enquiries with the deceased’s bank (it is not uncommon for banks to store a customers Will or hold a record of it);
• Search the safe custody Wills register; and/or
• Place an advert for information in the Law Society Gazette.