Wed 15 Aug 2018

Where there's not a will, there's a way.

After someone dies their estate has to be wound up.  The first step in that process is usually locating their will, assuming that they have one.  That is generally straightforward but sometimes the principal will cannot be located and only a copy can be found.  Wills are often drafted many years before the testator dies so it may be that the deceased, or their solicitor, has lost the principal will at some point over the years.

Sometimes an estate can be wound up even if the principal will has been lost but usually that is not possible. A principal will is required in order for Confirmation to be obtained.  Confirmation will be required in almost all cases as it is required to transfer property owned by the deceased, to transfer or sell shares and usually to release funds from investments. 

Thankfully there is a court process which can be used to enable Confirmation to be granted on the basis of the copy will.  The necessary court action is called an action of proving the tenor and can be raised in the Sheriff Court or the Court of Session.  In most cases the Sheriff Court is the preferred court as it's usually cheaper.

When raising an action of proving the tenor the first question is - who should raise the action? . This can be anyone with an interest but is typically an executor.  The action must be raised against and served on every person (known to the pursuer) who has an interest in the will.  This includes any other executors and beneficiaries.  It could also include people not named in the will.  For example, beneficiaries under a previous will who are not beneficiaries under the lost will would have an interest as, if the tenor of the lost will is proven, they would lose their entitlement to benefit from the estate.  It is important to give careful thought to which people have an interest in the will.  If nobody other than the pursuer has an interest in the will then the pursuer only needs to give notice to the Lord Advocate for the public interest.

Once the parties to the court action have been identified the next step is to prepare affidavits.  An action of proving the tenor is different to most other court actions because supporting documentary evidence must be lodged at the outset. In practice this means lodging affidavits (sworn statements) by witnesses.  It will depend on the circumstances of each case from whom affidavits are required, although the pursuer will usually always have to give an affidavit.  If the principal will has been lost by a firm of solicitors then someone from that firm will have to provide an affidavit. The affidavits should include as much detail about the circumstances of the case as possible.  If there is information about the circumstances in which the will was prepared and how it was stored that should be included.  They must also set out how the will went missing and the steps that have been taken to locate the principal.  They should also set out why the pursuer is satisfied that the copy will they have is a copy of the deceased's most recent will.  The court writ and affidavits can then be lodged along with other supporting documents.  The copy will must be included as well as a copy of the deceased's death certificate.  There may be other supporting documents required depending of the circumstances of the case. 

The court will then grant permission to serve the action on all defenders.  They will each have 21 days to decide whether they wish to defend the action (i.e. oppose the granting of a court order that the copy will is equivalent to the principal).  In most cases the action will not be defended and the case will then be passed to a Sheriff to decide whether the order should be granted.  The Sheriff will review all the papers and it they are satisfied that the order should be granted they will do so.  The court then issues an order that the deceased's will was in the terms of the copy will.  That rectifies the loss of the principal will and the application for Confirmation can be lodged.


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