What happens if a will cannot be found? The presumption of revocation

When a will goes missing, is it presumed destroyed? We look at the law that governs what happens if a will cannot be found.

A recent case, Whitton v Herman (2016), has touched upon an area of law which rarely reaches the Courts. It deals with the presumption of revocation that applies when a will cannot be found and how the presumption of revocation can be challenged.

By way of background, someone can revoke a will they have made by:

(i) marrying or entering into a Civil Partnership;

(ii) making a new will or a codicil;

(iii) making a written declaration that a will is to be revoked; or

(iv) by destroying the original will.

Where the original copy of a will cannot be found following someone's death, but it is known to have been in their possession and there is no evidence to the contrary, a presumption arises that the will has been revoked by destruction. It is then for those seeking to prove the will to rebut that presumption.

In Whitton v Herman, the Deceased had made a will in 2003 leaving his estate to a number of charities and to the claimant. The will appointed a friend, Mr W, as the executor, and the original will was passed to another friend, Mr S, for safekeeping.

In 2005, the Deceased wrote a Codicil on the back of a copy of the 2003 Will, with the phrase “PTO” written in the same ink on the front of the copy. When Mr W subsequently died, the Deceased asked for the original Will back from Mr S and indicated that he intended to make a new Will.

On the deceased’s death, the original will could not be found. The copy will, with the original codicil, was however found and the claimant sought to prove the copy will and the original codicil.

The Court upheld the claim. Whilst it was found that the presumption of revocation did arise, there was sufficient evidence to rebut it.

Key facts of this case included:

(i) the deceased’s deliberate storage of the copy will and original codicil with his important papers;

(ii) the illogicality of wishing to destroy the original will while retaining the original codicil, which wouldn’t have had any effect if the will did not stand;

(iii) the lack of any evidence to change the provisions in the will and codicil; and

(iv) the lack of any evidence that the deceased wanted the intestacy beneficiaries, who were distant cousins, to benefit.

Another point the Court found was that if the deceased did intend to revoke the will by destruction, then it would have been conditional upon his making a new will. It was considered highly likely that the only reason the deceased requested the original will back from Mr S and indicated that he intended to make a new will, was to change the named executor due to the death of Mr W. 

If you are involved in or dealing with an estate where the original will cannot be found and there is a dispute about whether it is presumed to have been revoked by destruction, or if there are any issues about proving a copy will, then please contact our Contentious Probate Team on 0808 139 1596 for a free case assessment.