What happens when a will is lost?

Wills are important documents that should be stored safely and securely. But it does sometimes happen that they are lost. When the will is professionally drafted, paper and electronic copies will usually exist on the file of the solicitor who prepared it. Can one of these copies be used instead of the principal, signed document?

To have legal effect, a will has to be signed on every sheet by the person granting it. A copy signature isn't enough. So, a copy can't be used in place of the principal will automatically. A court order is required through an action known as "proving the tenor". When the tenor of the copy is proved, the copy document has the same force and effect as the original.

Proving the Tenor

Traditionally, actions to prove the tenor of a document could only be raised in the Court of Session, Scotland's highest civil court. More recently, it has become possible to raise these actions in local Sheriff Courts. In the recent case of RW v JW, a Sheriff set out a reminder of the process for proving the tenor and what the court had to be satisfied about in order to grant an order.

In RW v JW, the principal will had been stored with a solicitor. The document was lost when the solicitor moved office and a box of papers went missing in the move.

Every person who has a potential interest in the estate of the deceased person has to be given notification of the court action and the chance to oppose the application. This includes not only those who would benefit under the copy will which is being proved, but also anyone else who might lose out – such as beneficiaries under an earlier will or those who would be entitled to an inheritance if there was no will. If there is no person other than the person making the application who has an interest, intimation of the application must be made to Scotland's highest law officer, the Lord Advocate, to represent the public interest.

What needs to be proved

In a written decision, the Sheriff in RW v JW set out a reminder that three things need to be proved before the tenor of a document can be proved: what the terms of the original document were; that the original document had been signed; and the circumstances in which the principal document was lost.

Where a document has been copied or scanned, proof of its terms and of it being signed will be relatively straightforward tasks. A copy of the document will be produced and lodged with the court. A formal witness statement will normally also be lodged explaining what the copy is and where it was found.

When it comes to proving the circumstances in which the principal was lost, again a witness statement will normally need to be lodged with the court. The statement, though, has to be coherent and properly explain the circumstances in which the principal document was lost. In RW v JW, the Sheriff thought there were some inconsistencies in the statement, compared to what was said in copy emails that had also been lodged with the court. The Sheriff required a second statement to be lodged in order to address this. The second statement clarified all of the Sheriff's queries, but it led to the Sheriff stating that there must be an "intelligible explanation for the loss" and that the court does not "rubber stamp" applications for proving the tenor.

No "rubber stamping"

The case shows that where a principal will has been lost and the court is asked to give force to a copy, the court will require a full and proper explanation for the loss of the principal and may ask questions if not satisfied with the explanation given. Even where no opposition is made, the court will not simply grant the order sought without giving the application proper consideration.