Proving the Tenor: What to Do When a Will Is Lost

A will is just as much at risk of being lost as other documents.  Where the deceased retains the original, there are many events which increase the risk (e.g. house moves). Even where the will has been retained by the drafting solicitor it may be lost.

If it the will was professionally prepared there is usually a copy available. However, to obtain confirmation and administer the deceased’s estate, the executor must produce the original will. A copy does not suffice and is of no effect on its own.  That can have far-reaching consequences if there is a prior will in different terms; or if distribution under the laws of intestacy would significantly differ from the lost will.

Action of Proving the Tenor

 An action of proving the tenor is an application to the court for an order which revives the lost will.  When the tenor of the copy is proved, the copy document has the same force and effect as the original.

The application can be made by the executor(s) or a beneficiary under the lost will. Every person with an interest in the estate of the deceased person must be served with the application and given an opportunity to oppose it. This can be an extensive list. It obviously includes the beneficiaries under the lost will. It also includes beneficiaries under a prior will who would lose out if the lost will is implemented.

 To succeed, the applicant must prove (i) what the terms of the original document were; (ii) that the original document had been signed; and (iii) the circumstances in which the principal document was lost.  Affidavits are normally produced to the court to evidence each of these.

The existence of (i) and (ii) are normally straightforward if a copy of the signed will is available. Establishing (iii) can be more complex.  The court will not simply process an application to prove the tenor of a lost will; there must be an intelligible explanation for the loss which justifies the court order being sought.

When considering (iii) above, an additional layer of complexity arises where the deceased was in possession of the original will.  In that case, it is presumed that the deceased destroyed the will as it no longer reflected their wishes.

An application in that scenario is a much more difficult task. The purpose of the application is to revive the deceased’s wishes at the date of their death.  To overcome the application of the presumption, the applicant must produce evidence that the will was merely lost. What documentary and affidavit evidence needs to be produced will depend on the circumstances of each case.

Early advice is key to manage a situation which is already emotionally charged.

Fraser Cameron
Legal Director
Email: fcameron@gilsongray.co.uk