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Category: Private Client

Published: 21 March 2024

What happens if the Principal Will is lost?

Proving theTenor of a Will

Assuming someone has left a will, the original signed version requires to be located in order for the Executor to administer their estate.  It is a significant problem if the principal will has not been registered in the Books of Council and Session,  and cannot be located,  and only a copy can be found.  Wills are often drafted a very long time before the testator passes away,  so it can occasionally be the case that the deceased has misplaced the principal will at some point over the years. We have also encountered cases where the deceased’s former firm of solicitors have been unable to locate the will in their safe years later. A principal will is required in order for Confirmation to be obtained which so is crucial to the process of winding up the estate.   Confirmation from the court is important as this is necessary to transfer shares or property owned by the deceased, and to release funds from investments.  Without the principal will, the only way to obtain Confirmation is by raising a court action called an action of  “proving the tenor” of the will.

Such an action can be raised in the Sheriff Court or the Court of Session.  In most cases raising an action in the Sheriff Court is the most practical and least costly option for proving the tenor.  An action for proving the tenor can be raised by anyone with an interest in the estate such as a beneficiary but would normally be raised by an executor.  The action must be raised against and served on every person who has an interest in the will.  This includes any other executors and beneficiaries, and also those people who may not be named in the will but who have an interest, for example, children of the deceased whose entitlement to the estate would be restricted to claiming legal rights, if the tenor of the will was proved.  If nobody other than the pursuer has an interest in the will,  then the pursuer needs to give notice to the Lord Advocate.

After the court grants a warrant for service i.e. grants permission to serve the Initial Writ on the  Defenders, they have twenty-one days from the date when service is effected to lodge a notice of intention to defend (NID)  if they wish to defend the action and oppose the granting the order to prove the tenor.  In most cases, the action will not be defended and once Affidavits (sworn statements of evidence from witnesses )  are produced with a minute for decree the papers will be sent to the Sheriff in order for the court to consider the Affidavits and supporting documentation and decide whether the order should be granted.  Subject to the court’s approval,  a final order is then issued to the effect that the deceased's will was in the terms of the copy will.  That order rectifies the problem caused by the loss of the principal will, and the application for Confirmation can then be lodged,  along with a copy of the court’s interlocutor proving the tenor which then takes the place of the original will.

The nature and scope of the  Affidavits that require to be prepared and lodged with the minute for decree will depend on the circumstances of each case. The Affidavits should be as detailed as possible setting out the full circumstances of the case including what is known about the execution of the original will, how it came to misplaced, and what steps have been taken to locate it. The court will need to be fully satisfied that the copy will produced is the deceased's most recent will and also that it reflects their testamentary intent.  The pursuer will almost always have to give an Affidavit.  If the principal will has been lost by a firm of solicitors a representative from that firm will have to provide an affidavit.  Other supporting documents also require to be lodged which must include the copy will and extract death certificate.

Whilst the process outlined above can be undertaken in the event of a lost will to attempt to rectify the situation,  it is a relatively costly exercise and causes delay and uncertainty in the estate administration. Whilst our team of experienced private client solicitors have acted successfully to prove the tenor of wills, this is by no means a certain outcome and each case will turn on its own facts. The complexity of this procedure underlines the importance of retaining the original will safely in a place where the Executor will know where it is located.

At Livingstone Brown, our experienced team of private client solicitors are happy to offer advice in the event of a lost or missing will where it is necessary to take steps to prove the tenor of the will.  We also maintain a will safe at our head office at 250 West George Street in Glasgow,  and we offer all our private clients a will storage service free of charge to ensure the safe-keeping of such important documents.  Contact our Private Client Team today for further advice.



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