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Derek Legal Blog

A Loved One’s Died and You Can’t Find Their Will

The Succession Acts 1981 provides for the formalities of a will and Section 18 can provide a relief when those formalities have not been followed but you have the will. What happens when you know there’s a will, but you can’t find it. There is a presumption if a will cannot be found that the Testator has destroyed it as early as 1836 the Courts have said, “The Rule of Law of evidence of this subject has established by a course of decisions in the Ecclesiastical Court, is this: that if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself and that presumption must have effect, unless there is sufficient evidence to repel it. Courts have accepted whole evidence on the point if a copy has been found, it can be admitted to probate providing the following can be shown:

(a)    That there was a will;

(b)    That the document revoked all previous wills;

(c)     That the presumption that when a will has not been produced it has been destroyed and thus revoked must be overcome;

(d)    The terms of the will;

(e)    The will was duly executed.

If you have a copy of the will, it is a matter of giving evidence as to its execution and the circumstances around the original going missing. For instance, the deceased may have shifted house and documents went missing during the removal. In one case, where a copy of the will was admitted to probate it would have shown that the original will was last in possession of some solicitors and could not be found.

Posted in: Derek Legal Blog at 16 May 18

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