11 October, 2022
A Will is a legal document which records how an individual would like to dispose of their estate after they have died. Solicitors who prepare a Will owe a duty of confidentiality to their clients not to disclose its contents without their client's permission.
Once a person has died, the easiest way to obtain a copy of their Will is to ask the Executor to provide a copy. An Executor is the person appointed by the Will to administer the estate and is the only person entitled to see the Will and read its contents. A Will is a private document after the death of its maker and before it is submitted to probate. An Executor can choose to send a copy of the Will to other persons to read if they wish to, but they are not obliged to do so.
It is part of the Executor's role to collect in the deceased's assets, pay any liabilities and then distribute the estate in compliance with the Will. In most cases the Executor will have to apply to the Probate Registry to obtain a Grant of Probate. The application involves sending the original Will to the Probate Registry. When a Grant is issued the Will is considered a public document and anyone can apply to the Probate Registry to obtain a copy by searching the Gov.uk website for a small charge.
A situation can arise in which it is known that a person has died but a search of the probate register has revealed that a Grant of Probate has yet been issued. In those circumstances, it is sensible to file a standing search with the Probate Registry at a cost of £10. This allows an individual to lodge their request for a copy of the Grant and the Will before an application for probate has been made and a Grant has been issued. A standing search expires after six months but it can be extended for a further six months.
Another approach to obtaining a copy of the Will before a Grant of Probate is extracted is to provide a Larke v Nugus letter to the solicitors or Will writer that prepared the Will. Such a letter is usually sent by a disappointed beneficiary who has concerns about the validity of a Will. The letter asks the Will draftsperson to provide their evidence concerning the circumstances surrounding the preparation and the execution of the Will and to make available a copy of requested documents including their file. The Law Society has recommended to solicitors that they should make available a statement of their evidence and requested documents when a Will is in dispute and that no issue of confidentiality arises.
An application can be made to the probate registrar if the Will is in the custody, possession, or power of someone who refuses to release it. If successful, the registrar issues a summons requiring that person to lodge the document at the registry within 8 days or such other period as the registrar considers to be reasonable. The summons contains a penal notice which threatens imprisonment if it is not complied with. An application of this kind might be used by a disappointed beneficiary who has concerns about the validity of a Will but is refused a copy or an Executor knows that the Will is held by someone who refuses to release it.
An alternative application is for an order requiring a person believed to have knowledge of a Will to attend court to be cross examined under oath. This application can be useful in respect of persons who do not have custody of the Will but do have some knowledge of the whereabouts of the document or to force to attend court a Will draftsperson who has failed to answer a Larke v Nugus request.
It is possible to submit a copy of a Will to probate if the original Will cannot be located. An application can be made to the probate registrar to issue a Grant of Probate in respect of a copy of the Will. It is not necessary to persuade the registrar that the original Will has been lost. It is only necessary to show that it was not revoked by the deceased during their lifetime. A presumption exists to the effect that a Will that cannot be found which is known to have been in the deceased's possession has been destroyed by the deceased with the intention of revoking it. It is necessary to rebut that presumption on the evidence to succeed in obtaining an order that a Grant can be extracted on the basis of a copy of the original Will.
For more information contact John Lambe in our Contesting a Will department via email or phone on 01772 220 235. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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