Applying For A Limited Grant Of Probate

Where there is a Will, the rules for applying for a Grant of Probate provide that the following must be submitted to the Probate Registry (online or by post):

• The Original Will and any Codicils
• Death Certificate
• Inheritance Tax Form
• Relevant Probate Form
• Fee

The original Will may be kept by the Deceased, the named Executors or at the offices of the Solicitors who prepared the Will. Ideally the Deceased would have told the necessary people where the original Will has been kept.

However, this may not always be the case, and so what happens when the original Will has been lost, damaged or otherwise unobtainable?

A Limited Grant of Probate

An executor can make an application for a limited grant of probate under Rule 54 of the Non-Contentious Probate Rules 1987 which will apply until such time as the original Will (or a more authentic copy) is located.

An application shall be supported by an affidavit (or witness statement) setting out the grounds of the application, and evidence as to

• (a) the will’s existence after the death of the testator or, where there is no such evidence, the facts on which the applicant relies to rebut the presumption that the will has been revoked by destruction;
• (b) the contents of that will
• (c) which was duly an properly executed
• (d) the accuracy of the copy, draft or reconstruction

Burden of Proof

The burden of proof is “fairly and squarely” on the Claimants who must prove on a balance of probability that the Will was validly executed, had not been revoked at as the date of death, and that the copy was a genuine copy of the original Will as executed. This was confirmed in the recent case of Estate of Dawson (deceased) Dawson & Anor v Dawson & Ors [2022]. The Defendants were entitled to put the Claimants to prove but were not in a position to put forward any contrary evidence.

In this case the deceased has allegedly made a Will on 27 February 1989. It was kept by the deceased until some time after his death when it was then handed over to a solicitor who subsequently lost it. An executed copy was produced from the solicitors who drafted the Will.

The court accepted the evidence of the widow (who made a mirror Will at the same time) and an order was made for a grant of probate accordingly.

Presumption of Revocation

It is normally presumed that if an original Will cannot be located then it must have been destroyed intentionally.

This means that the Estate will then be distributed according to any original Will that can be located or under the rules of intestacy.

To rebut this presumption, a claimant would have to show:

1. The Will was in existence after the Deceased’s death or
2. The Deceased did not destroy the Will

Evidence

The best evidence in support of these applications will include:

• A copy of the executed Will
• Evidence from the attesting witnesses
• Evidence from the solicitor/firm who drafted the Will
• Contemporaneous evidence from the deceased
• Family or friends who can confirm relevant factual events
• Efforts made to try and locate the original Will and why the original Will is not available

Draft Will or No Will

If a claimant is relying on a draft Will only then they must be able to prove that this reflected the deceased’s intentions and accords with their instructions in the preparation of the Will.

It should also be the final draft sent for signing and reflected the final version that was executed.

If there is not even a draft Will available then not all is lost, and a claimant will have to undertake the onerous task of reconstructing the terms of a Will. This will obviously be a higher hurdle, but can be important if it is clear that the deceased never intended to have a Will destroyed.

Limitations

Ultimately the best way of administering an Estate is to obtain a full grant of probate on an original Will. This would avoid the additional time and expense required to obtain a limited grant of probate especially if the application is contested and needs to be determined in court.

Steps should be taken to safe guard an original Will and its location clearly notified to all the relevant parties. Having a Will in a safe at a solicitor’s form is probably the best form of security, given if they then lose it, you could have recourse to their indemnity insurance.

Having a Will prepared by a solicitor also ensures that there will be adequate evidence of any draft or copy executed Will which will make any necessary application more likely to succeed.

Our Dispute Resolution solicitors have years of experience in drafting wills for our clients. If the original Will is lost, damaged or otherwise unobtainable, our experts will advise on how to apply for a Limited Grant of Probate. To speak to one of our experts, call 0330 822 3451 or request a call back online.