Help! I've lost the will
Jones v Tracey
The facts of the case were relatively simple. David Turner executed a will on 21 February 2013 and subsequently died on 20 August 2017. Nobody was able to find the original although, usefully, a copy existed.
However, Linda, his estranged sister, argued that as the original couldn’t be found then it should be presumed that David had revoked the will. If Linda was successful, David’s estate would pass in accordance with the intestacy rules, meaning Linda would receive everything.
Where a will was known to be in the possession of the deceased but then can’t subsequently be found, there’s a presumption that it’ll be revoked. However, this presumption can be successfully challenged where it can be shown it’s more likely than not the deceased didn’t revoke the will.
Court considerations
In considering this, the court will deliberate these issues:
- Whether it’s accepted the will was in the custody of the deceased
- Whether adequate steps have been taken to locate the original will
- What the deceased was like in relation to storage of documents. For instance, were they an organised person or were they very messy and disorganised and, therefore, more likely to have lost or misplaced the will?
- What did the deceased want to happen to their estate when they made the will?
- Is there any evidence the deceased’s intentions changed after making the will?
In Jones v Tracey, it was accepted that David did have the will in his possession, but despite extensive searches being carried out, the original couldn’t be found. David was a very untidy person whose room was described as “chaos”.
It was also found that David was very clear within his will that he didn’t wish for Linda to benefit and there’s no evidence to suggest that he wanted to change this to ensure Linda would benefit via the intestacy rules.
The court therefore found the will was valid. David’s executors were allowed to obtain a grant of probate to administer his estate based on the copy of the will.
A grant of probate
A grant of probate is a grant of representation obtained from the court which confirms the legal authority given to the executor of a deceased’s will to act in the administration of their estate.
Strictly speaking, an executor’s powers derive from the will itself (rather than the grant of probate) and so they can act in the absence of a grant of probate. However, the grant is necessary for an executor to prove their title. It’s therefore typical for third parties to require a copy of the grant before they enable the executor to take certain actions, such as selling property.
For this reason, a grant of probate is ordinarily necessary to complete the administration of an estate (where the deceased person left a will).
What this case shows us
This case highlights the importance of properly safekeeping a will and taking proactive steps to ensure it’s properly stored, such as talking to loved ones about where your will is kept so they’re aware of this.
However, it’s also important to take legal advice if you’re unable to find the original will of a loved one after their death. Without the original will, an application to the probate registry is necessary to seek approval for their estate to be administered based on a copy of the will (or the known terms of that will where a copy cannot be located), and it’ll therefore be necessary to demonstrate that the original will wasn’t revoked.
Read the latest edition of Private Affairs for updates in private wealth law.