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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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Is there a presumption in English Law that if a will is collected

Resolved Question:

Is there a presumption in English Law that if a will is collected from a solicitors office several years after it was made, the purpose was to revoke the will or destroy it?
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
Hi.
Thank you for your question. My name is ***** ***** I will try to help with this.
-Could you explain your situation a little more?
Customer: replied 2 years ago.

Solicitors are refusing to apply for the Grant of Probate in respect of a copy of a will executed by them in 1979. They say my aunt collected the will in 2003 and took the will away with her. They have told me that there is a presumption in English law that if the will was collected and cannot be found then is must have been revoked by destruction. Is this correct?

Expert:  Jo C. replied 2 years ago.
Are you saying that your aunt collected the will in 2003 and took it away with her and that it cannot now be found?
If that is the case, how exactly would they apply for grant of probate?
Are you saying the they should apply to have the copy will admitted?
Is there any later will?
Customer: replied 2 years ago.

Aunt took the will away with her and cannot now be found. A copy of the will remains on their file. There is no later will. I understand that a copy will may be accepted by the Probate Registry as long as it complies with the Wills Act

Expert:  Jo C. replied 2 years ago.
In common law, where a will was last shown to have been in the custody of the person who has died and that it’s not been located, then in the absence of evidence to the contrary, it is presumed that it was revoked. That is the situation that you are in because the will was last in the custody of the deceased in 2003 and can not now be found.
This also applies to any copies.
The solicitors are at liberty not to take any instructions if they think this was the case.
If you want the copy will to be admitted to probate, it is essential that you come up with some evidence or witness testimony from someone with knowledge of the circumstances surrounding the old will and preferably with no interest in what it said, that the person who died merely wanted to keep the will for themselves, and not to destroy it.
In cases like this, the estate would be dealt with under the rules of intestacy.
I'm sorry if this answer is unfavourable for you
Can I clarify anything for you?
Jo
Jo C., Barrister
Category: Law
Satisfied Customers: 69792
Experience: Over 5 years in practice
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