A surprising number of cases arising out of contested wills come before the courts each year and the large majority of these are avoidable. Such cases can arise for a variety of reasons, one of which is that a will is known to have been made, but cannot be found.
Recently, a ‘lost will’ case was heard in which the original of the will was said to be lost and a photocopy of the alleged will was put before the court for verification.
Behind the case was a not uncommon story. A father died and the copy of his will favoured one of his sons, with whom he had lived for several years. The main asset of the estate was the family home and this was left to the son, with the residue of the estate divided between the other children. If the will was ruled to be invalid, they stood to inherit far more, under the intestacy rules, and they contested the validity of the will. They argued that the will was forged and that if it was not, then the deceased must have revoked and intentionally destroyed the original. They argued that their father hoarded documents and that he would have kept the original of the will if it still represented his wishes.
The evidence of a handwriting expert, concerning the authenticity of the will, was inconclusive. However, the court heard a great deal of independent evidence that confirmed that the deceased had indeed intended to give the family home to his son on his death. Furthermore, witnesses were produced who recognised the photocopy as being that of the original will which they had been asked to witness.
The judge ruled that the photocopied will be accepted as valid.
“This is yet another example of a case which resulted in unnecessary costs and no doubt a considerable amount of ill-feeling in the family,” says Richard Dale. “The legal proceedings also delayed the administration of the estate for a very considerable period. This circumstance could easily have been avoided had the original of the will been prepared with the benefit of professional advice and retained in a safe place which was known to the family. Making a will using a solicitor is not expensive and can avoid a great deal of unnecessary cost, delay and, possibly, acrimony between surviving members of the family.”
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