Original copy of will cannot be found

[Padraigb]

I am the nominated executor of a will. The deceased had let the family know where the will was to be found, but when it was retrieved it was found to be a photocopy.

The solicitor who assisted in drawing up the will does not have the original, but also has a photocopy. The solicitor and the witnesses (persons in the solicitor's office) are available to testify that the photocopies are proper copies of the original. Obviously, the copy retained in the solicitor's office has great probative value. I imagine that it is also helpful that the effect of the will would be effectively the same as if there were no will: equal shares for the nearest kin.

Clearly, the thing to do is organise a hunt for the original will, and that has been started. But if the search fails, what steps do I need to take to have a copy accepted? In particular, I want to manage things with some expedition because I judge that to be in the best interests of the beneficiaries.

 

[Ravima]

you need to go to a solicitor. The chappie who also has the photocopy might be the best one to go to, especially when he is 'on side' so to speak.

 

[j26]

Secondary evidence of a will (e.g. a photocopy) will do, but there will probbly be quite a bit more legwork. Having the solicitor willing to state on affidavit that the copy is a true copy of the will will help a lot.

If there's no difference between the distributions with or without a will why not just go on the basis of an intestacy?

 

[Padraigb]

Thanks for the replies.

My own supposition was that there would be more legwork, although I would hope "quite a bit" is overstating it. My thinking was that an affidavit from the solicitor who drew up the will would satisfy the Probate Office. I presume that when I make written application for Probate that I should outline the position and that the Probate Office will tell me what it requires. Does that seem like the best way to approach it?

I would prefer not to proceed on the basis of an intestacy because (1) it is not the truth, (2) I am not the next of kin and that creates an extra protocol to be dealt with, and (3) I would need to arrange a bond.

Doing the work matters to me. It honours the wishes of the deceased person, and it spares the beneficiaries a burden that they do not want to carry. As you might guess, this is family, and that makes it important.

 

[mf1]

My understanding is that, in these circumstances, there is an (almost automatic) assumption that the will has been revoked and that a Court application will be necessary to prove the will in terms of a copy.

mf

 

[Padraigb]

My understanding is that, in these circumstances, there is an (almost automatic) assumption that the will has been revoked and that a Court application will be necessary to prove the will in terms of a copy.

Ouch! That would make life awkward. Thank you for the reply.

 

[mf1]

Ouch! That would make life awkward. Thank you for the reply.

I'm not an expert but that was the general view in Brian Spierins book and my own textbook on Probate/Grants.

Ouch is right!

mf