Losing a will can create significant complications for the intended beneficiaries of an estate. However, the outcome varies depending on who loses the will—the individual who wrote it (the testator) or the solicitor responsible for holding it.

Lost by an Individual

If the will is lost by the individual, the law presumes that the testator destroyed the will with the intention of revoking it. This means that the estate would be distributed as though there was no valid will, following intestacy rules. This presumption can be rebutted if evidence can be presented showing that the will was not destroyed intentionally—such as a copy of the will, or witness testimony. In this case, the court may accept the terms of the lost will, however, this process can be complex, costly, and time-consuming.

Lost by a Solicitor

When a solicitor loses a will, the legal presumption of revocation typically does not apply because the will was in the care of a professional who should have safeguarded it. In this scenario, a copy of the will (or any draft) might be accepted by the court, especially if there is no evidence that the testator wanted to revoke it. The solicitor may also be held liable for negligence, and compensation may be pursued if beneficiaries suffer financial losses. Solicitors are usually insured against such risks, making the resolution somewhat easier than when an individual loses the will.

In summary, if an individual loses a will, it can lead to serious legal challenges and potentially intestacy. If a solicitor loses a will, there are typically fewer legal assumptions about revocation, and the solicitor may be held accountable for any losses. In either case, retrieving a copy or proof of the will’s contents is critical for enforcing the testator’s wishes.

Our advice is to always store your will with the solicitors who drafted it. Here at Mercers, if we draft your will we store it for you free of charge. For will writing services contact one of our Private Client team.

To find out more about who can witness a Will and the formal legal requirements for executing a Will please read our article: “Who can witness a Will?”  

Article written by Megan Wood –Solicitor – Litigation Department.