What if a Will is Lost?

The short answer

A lost will creates serious problems. If it was lost by accident, there may be ways to prove its contents — usually through a copy or other evidence, and sometimes with the court’s help. But if the will was deliberately destroyed with the intention of revoking it, it is revoked and cannot take effect. The law also presumes that a will held by the will-maker and missing at death was destroyed on purpose — unless that presumption can be rebutted with evidence.

The presumption of revocation

If a will was last seen in the will-maker’s possession and cannot be found after death, the law presumes it was destroyed by the will-maker with the intention of revoking it. That means the estate may be dealt with under an earlier will or the intestacy rules — unless the family can produce evidence that the will was accidentally lost, destroyed without intent, or that it existed and was never revoked.

What to do first

Before assuming the worst, search thoroughly:

• the will-maker’s home — safes, filing cabinets, drawers, and personal papers;
• their lawyer — law firms often hold original wills, even after the firm has changed hands;
• banks and safe deposit boxes;
• professional will-storage services;
• copies, scans and digital records — including emails and cloud storage; and
• family members who may have been given the original to look after.

The will-maker’s lawyer is often the best starting point — many people leave the original with their lawyer without anyone else knowing.

Proving a lost will

If the original cannot be found but a copy exists, the court may be able to grant probate of the copy — but only if the court is satisfied that:

• the will was properly made and executed;
• its contents are clear; and
• it was not revoked.

Evidence can include a copy, a draft, a scan, notes from the lawyer, and statements from the witnesses or people who saw the will. This process takes time, costs money, and is not guaranteed — which is why prevention is far better.

If the will was deliberately destroyed

Deliberately destroying a will with the intention of revoking it revokes it. Once revoked, the will cannot take effect — even if a copy survives. The estate then follows an earlier valid will (if one exists) or the intestacy rules.

Common situations

Lost-will situations arise in different ways:

• a will that was signed but never stored safely, and cannot be found after a move;
• a will destroyed by fire, flood or accident — accidental destruction does not revoke a will, but proving what it said is still difficult;
• a will left with a lawyer whose practice closed, and the file cannot be located;
• an unsigned draft mistaken for a valid will — a will that was never signed is not valid; or
• a copy kept at home while the original was with the lawyer — usually the easiest situation to resolve.

How to prevent it

A few simple habits avoid most lost-will problems:

• store the signed original somewhere safe and known;
• tell your executor exactly where it is;
• keep a copy in a separate place;
• leave the original with your lawyer or a professional storage service if you prefer;
• keep a note of where it is, and update it when you move; and
• review the arrangement whenever your circumstances change.

The bottom line

A lost will can mean an earlier will or the intestacy rules decide your estate, even if everyone knows what you wanted. If a will is missing, search hard, gather evidence, and get legal advice about proving it. And if you are still making your own plans, store the original safely and make sure your executor can find it. Our guide on storing your will and guide on revoking a will cover the surrounding rules.