We have all done it – put something somewhere and come back to find it is no longer there. However, what happens when it is someone’s Will that has gone missing. This FAQ seeks to address the steps that need to be taken where it is discovered that a person’s Will has gone missing after they have died.
1. How can a Will get lost?
A Will can get lost in a number of ways. For example, a person may have lost their Will unknowingly during a house move. Alternatively, their Will may have been stored by their solicitor on their behalf and was lost by their solicitor at some point in time. It has also been known for a Will to get lost in transit where it has been sent to court during the administration of a person’s estate.
2. I am an executor of my friend’s estate and need to apply to the court for Confirmation in respect of their estate. I have completed the application, but the court will not progress it until I send them my friend’s Will. I only have a copy of the Will, is this sufficient?
Depending on the size of the person’s estate, an executor may need to apply to the court for what is known as ‘Confirmation’. Where Confirmation is required, this must be granted by the court before the executor can proceed to administer and distribute the deceased’s estate in accordance with the deceased’s Will. Until Confirmation is obtained, the executor does not have the legal authority to administer or distribute the deceased’s estate.
When making an application for Confirmation – the executor must send to the court the deceased’s original Will. A copy of the Will is not sufficient for the purposes of Confirmation and will be rejected by the court. If you cannot find the original Will please see answers 3 and 4.
3. I am my mother’s executor. What should I do if I cannot find her original will?
If you know that the individual had a Will in place and you require this for Confirmation, you should look to contact the solicitor who prepared the Will (if known). They may hold the original Will in which case you can simply request that this be sent to you. If not and the Will has most definitely been lost, you should contact a solicitor as you will need to raise an action to ‘prove the tenor’ of the Will.
4. What does ‘proving the tenor’ mean and what does it involve?
‘Proving the Tenor’ is a type of action that is undertaken in Scotland to establish the contents of a document. In the context of a missing Will, the purpose of raising this type of action is to have the Court confirm the contents of the missing Will.
To raise such an action, an application must be submitted to the Court along with a list of evidence. The application must set out 3 things;
- that the deceased signed the Will for which you are seeking to prove the contents
- the terms of the Will, i.e. what the deceased sought to set out in the Will
- the reason for the Will having been lost/accidentally destroyed.
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.
5. My father had a Will in place, but I cannot find it. He had spoken about getting a new Will in recent years but never got around to it. Can I raise an action to ‘prove the tenor’ of his Will anyway?
In any action to ‘prove the tenor’ of a Will, you must be able to demonstrate to the court that the Will was in fact lost. Where the Will was destroyed as opposed to lost, you have to be able to show the court that this was accidental for example, that the Will was accidentally destroyed by fire or flood (see answer 4 above).
If you are unable to demonstrate that the Will was lost or accidentally destroyed, then there is a strong argument to suggest that the Will was destroyed on purpose by the individual as it no longer reflected their wishes. Where this is the case, any action to prove the tenor of the Will would likely be unsuccessful as the court must be satisfied that the original Will expressed the deceased’s wishes at date of death.
In these circumstances, the estate could fall into intestacy – i.e. it could be treated as if the deceased did not have a Will in place when they died. The deceased’s estate would then be distributed in accordance with the Rules on Intestacy (see answer 9 below).
6. It would appear that my father requested that his solicitor send him the original copy of his will a number of years before he died. I cannot find the original will and there is no copy of the will.
It is quite common for individuals to want to store all of their important personal documents together at their own home. The difficulty with this is, if a Will has gone missing whilst being stored at their property – the legal presumption in Scotland is that the Will has not gone missing at all but rather has been purposefully destroyed by the individual, as they no longer wanted it to take effect upon their death.
You may know that this is not the case, and that the Will is simply missing - however you will require to provide substantial evidence to override this presumption. This will be incredibly difficult without having a copy of the Will. You will have to show through a catalogue of evidence (see answer 7 below) that due to the specific circumstances surrounding the Will going missing, there is a real possibility that the Will was not destroyed by the individual on their own accord.
7. What sort of evidence do I need to prove that my wife’s will is missing and not destroyed?
In terms of evidence, it is incredibly useful to have a copy of the Will. Beyond this, it will be important to keep record of any letters/emails from for example the solicitor, the courier or any third party you have been liaising with to recover the original Will. You should also keep a record of any correspondence where a third party has recognised that the Will was lost whilst in their custody. This is a non-exhaustive list and you should retain any documents which you consider to be useful.
Where an action to prove the tenor of a Will is raised, you will also be required to submit written statements to the court. These statements can be taken from a variety of individuals. In these statements, a person may speak to how the Will came to be lost in their care or may look to discuss the deceased and how you know that the Will was not destroyed purposefully by them. Ultimately, who is most appropriate to give the statements and the content of the statements will depend on the circumstances of the case.
8. Can I raise an action to prove the tenor of a Will, if I was not appointed by the deceased as their executor?
Actions which are raised to prove the tenor of a missing Will are typically raised in the names of the executors appointed under the missing Will in question. However, if you are a beneficiary under the missing Will you could potentially raise an action. If you are considering raising an action to prove the tenor of a missing Will but do not know if you are able to do so, please do get in touch.
9. If I need to raise an action, do I need to let the deceased’s relatives know, even if they are not mentioned in the deceased’s Will?
When you raise an action to prove the tenor of a Will, you have to serve court papers on everyone who is said to have an ‘interest’ in the Will. You are also required to bring them into the action as ‘defenders’. Those considered to have an interest in the Will would include persons who are named in the Will (or in any previous or subsequent testamentary writings) or would stand to benefit from the estate if it were to fall into intestacy. Whilst identifying interested persons may seem relatively straightforward, the Rules of Intestacy can be complex, and it is recommended that you seek advice from a solicitor to ensure that all interested parties are identified and served with the necessary court papers.
Where you are the only person that has an interest in the Will, you are required to call the Lord Advocate as a defender.
10. My sister disagrees with me raising an action to prove the tenor of our mother’s missing Will. Can she do anything to stop the action being successful?
In these circumstances, your sister would be considered to have an interest in your mother’s Will (see answer 9 above). For such reason, if you were to raise an action to prove the tenor of your mother’s Will you would need to bring her into the action as a defender. In doing this you would need to serve on her the court papers after which she would have 21 days to seek to defend the action. In the event that she did not defend the action (and no other defender did so), you could ask the court to grant you decree.
If your sister did defend the action further procedure would have to take place, and a hearing would likely be set for the court to decide whether the action should be successful.
11. I have been told that if I treat my grandmother’s estate as if no Will ever existed, her estate would be distributed in the same way as if distributed in accordance with her Will. If this is correct, why do I need to raise an action to prove the tenor of her missing Will?
Where a person dies having left a Will, their estate should be distributed in accordance with the terms of that Will.
Where a person dies without leaving a Will (known as dying ‘intestate’), their debts and liabilities are paid from their estate. Thereafter, any remaining proceeds of their estate are distributed in accordance with the Rules of Intestacy, which are set out in legislation (The Succession (Scotland) Act 1964). In accordance with these rules, the estate is distributed firstly to the deceased’s spouse/civil partner up to a certain value and then to their children, who are again giving funds up to a certain value. If there are then still sufficient funds in the estate, these are distributed to other family members including parents and siblings.
Depending on the terms of the deceased’s Will, sometimes a relative will be entitled to the same proportion of the estate under the deceased’s Will as they would have been had the deceased died without a Will in place. For example, a person may have been left the entirety of a relative’s estate under their Will. However, due to the family set up (for example, if they are the only living relative of the deceased) they would be due to inherit the entirety of their estate anyway under the Rules of Intestacy.
Where this happens it begs the question - why do we need to raise a court action to prove the tenor of their Will where the same result would be achieved by treating the estate as if the deceased had no Will?
The reason for this is far from straightforward. Ultimately, where the deceased is known to have left a Will disposing of their estate, and there is no suggestion that this Will was invalid for any reason, the proper course of action is to proceed by way of an action of proving the tenor. Whilst this may seem a timely and costly exercise which may practically make no difference to the distribution of the estate, the court is typically not prepared to disregard the existence of a person’s Will.
12. My loved one’s Will was lost in the mail, should the courier cover the costs?
Unfortunately, it is quite common for Wills to be lost in transit or lost by third parties. Where this happens, you should seek to engage with the third party as they may look to meet the costs of the action to prove the tenor of the missing Will. If not, you could potentially raise a separate civil action to look to recover costs incurred in the proving the tenor action.
13. I am reluctant to raise an action to prove the tenor due to the costs that are likely to be involved. Is this something which I can seek to recover from the estate?
Raising an action to prove the tenor of a Will can be a costly exercise. Depending on the family set up and the circumstances in which a Will has become lost, extensive investigations may be necessary before an application to the court can be made. The action could also be defended in which case, a hearing would be set for the court to make a decision one way or another. This again could increase costs. However, where you do need to undertake this process, you will be able to make a claim against the estate to try and recover the same.
The action of proving the tenor of a Will can be incredibly complex. It is advised that you seek advise at the early stages of any action at in particular when it is discovered that a deceased’s Will has gone missing or has been accidentally destroyed.
