Where is your will?
The consequences of losing a will can be devastating . If you are alive and well enough to make a new one all well and good . But finding the will of someone who has died is rather more difficult .
Having made a will, many of us give little thought to where it is kept. Some put it in a drawer or file along with other 'important papers' and promptly forget all about it. Others lock it away carefully telling close friends or family members exactly where it is, and then move house. And said close friends and family, busy with their own lives (and perhaps hiding their own wills) forget where it was you've hidden yours. 'Important papers' can and will go missing.
Those wiser among us store their wills at a bank or with their solicitors, retaining a copy for themselves and for those close to us. Wiser, because a little-known legal presumption is lurking for the relatives of those who keep their wills to themselves.
An original will known to have been in the possession of the person who made it but missing at death, is presumed destroyed and cancelled.
This presumption of revocation is a harsh one. It can be displaced by evidence, for example sworn statements setting out the testator's clear and unchanged intentions from the time he made his will. Not too much of a burden if everyone agrees. But even a lone dissenting voice can cause trouble emotionally and financially, particularly if the result is an intestacy or ensuing litigation.
A will is not considered to be revoked where it is lost but had been in the possession of someone other than the testator, for example, a bank or firm of solicitors or even a friend or relative. In these cases it will often be possible to prove a copy will (if there is one) – not as straightforward as proving the original, but relatively routine nevertheless, particularly as it is not necessary to show evidence that the will was not revoked.
We recommend to clients that we hold their wills. We don't charge for this, and it gives clients peace of mind.
We also recommend to clients that they review their wills every five to ten years. Apart from acting as a regular check on where the will is, it means that the will is kept up-to-date with the circumstances of the testator and family, changes in the law, and the ever changing tax regime.
The need to make a will is something that haunts many of us for a very long time. But simply making it is not enough. It is vital it is kept under review, and most importantly, it is vital it is not lost.
Elizabeth Urquhart Irvine, Trainee Solicitor
Private Client Practice
email e.irvine@pglaw.co.uk
tel 020 7591 3346