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Lost Will - Revoked - Destroyed - Probate Solicitors
This thorny topic is one that consistently appears in probate courts and principally relates to dishonesty by potential beneficiaries who believe that they may have been excluded from a will. If the first person on the scheme after death finds a will in which they do not appear as a beneficiary, they may well destroy that will in the hope than an earlier will may take precedence or in the hope that the intestacy rules may include them as a beneficiary. There are many other equally difficult scenarios. If a will has been chewed by the dog was it an accident or did the testator give the will to the dog to tear up as an act of revocation? If the original has been lost or destroyed or spirited away by another disgruntled person can a copy takes its place and form the basis for a grant of probate or has the missing original been destroyed and removed by the testator as an act of revocation? All of these situations and many other vexed questions are dealt with by judges in the probate courts and in every case the end result and the final judgement depend on the overall evidence presented to the court by the claimant who must, on balance of probability, prove the case in order to be awarded judgement in their favour.
Revoked by Destruction or Accidental Damage
It is sometimes the case that an original will is found at the house of the deceased which is in pieces, having been torn up. This is generally sufficient to indicate that the will was revoked by destruction and any earlier will takes precedence or the intestacy rules will apply. Revocation by destruction must be carried out by the deceased or by another person on the direct instruction of the deceased. If the document that has been torn to pieces is only a copy and the original will, which may be lodged elsewhere, is intact then the original will takes precedence as it has not been destroyed. If an original will has been destroyed by accident, for example if the dog eats it, then it is not a revocation and a copy usually suffices to prove the original will.
Simply Lost and Not Revoked
It may be that the original will has been lost in a house move by the testator or was lodged with a bank or a lawyer and has been lost or misplaced or that the document is lost in the post in transit to the probate registry and in those cases provided that there is sufficient evidence to show that the testator did not revoke the will by destruction then a copy of the lost will may be proved, upon authority from a judge in the Supreme Court and a grant of probate will be issued for the lost will. It must be said that judges do require very strong evidence to prove a copy of a lost will and there will always be the assumption that the lost will was destroyed and disposed of by the testator as an act of revocation.
Revoked by a Later Will
The most formal and sensible method of revoking a will is to execute a new will. Many testators who revoke a will by destruction without taking legal advice do not realise that an earlier valid will replace the destroyed will, which is not always their intention.
Contested Probate Solicitors
Our specialist solicitors deal with contested wills on a no win no fee basis. If you would like free legal advice relating to challenging or disputing probate or objecting to the behaviour of an administrator or executor just complete the contact form or email our offices. One of our lawyers will call you with information about preserving your legal rights with no further obligation.LAWYER HELPLINE: ☎ 1800 455 260
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