When it comes to estate planning, drafting a will is a crucial step in ensuring that after your death your assets are distributed in accordance with your wishes. However, having written a will it is important to ensure the document is kept safe. This is due to a legal principle known as the presumption of revocation.
Presumption of revocation
The presumption of revocation arises when an original will cannot be found after the death of the testator (the person who made the will). English law presumes that if a will, last known to be in the possession of the testator, cannot be located, the testator destroyed it with the intention of revoking it. This presumption was discussed in a decision of the Jersey Royal Court last month.
If a will is lost or cannot be found, and there is no evidence to the contrary, the courts will generally assume that the testator intended to revoke it. This can lead to the estate being distributed according to the rules of intestacy, which may not reflect the deceased's wishes and could give rise to unexpected tax liabilities for the estate.
Avoiding the presumption of revocation
To avoid the presumption of revocation, it is crucial that you keep your will in a safe place.
There are several other reasons why we recommend clients keep their will somewhere secure:
- Storing a will securely ensures that it can easily be found after the testator's death.
- Keeping the will in a secure location ensures it is protected from accidental loss, damage, or destruction.
- A securely stored will is less likely to be tampered with.
What happens if the presumption applies
If a will that was in the testator's possession cannot be found after the testator's death, the onus will be on those who assert that the will was not revoked to provide evidence that it was not.
Evidence will need to be produced to the court to rebut the presumption of revocation. Such cases often hinge on the specific facts presented, such as the last known location of the will, the testator's expressed intentions, and any changes in circumstances that might suggest a reason for the will's disappearance.
In the Hartopp case the Royal Court were persuaded on the evidence that the presumption of revocation was rebutted and admitted a copy of the testator's will to probate.
However, the outcome of any legal dispute over a missing will can be highly unpredictable. This unpredictability underscores the importance of keeping a will in a secure location to avoid such disputes altogether.
Any dispute over a missing will incurs legal costs and delay in obtaining Probate and administering the estate. These are costs that could easily have been avoided if the will had been stored securely.
Safe storage facilities
Many solicitors offer safekeeping services for the wills they draft.
Another secure option for the storage of wills in England & Wales is the Probate Service's will storage facility. However, this service is rarely used as it is little known about.
Conclusion
There is no legal requirement in England and Wales to store a will in any particular way. We recommend clients discuss all available storage options with us to determine the best choice for their individual circumstances.
At Mishcon we provide our clients with a secure offsite storage facility in which to store their will. The facility is free of charge and ensures the content of their will remains confidential and protected from theft, loss, or damage.
Whichever storage option a client decides to use, we encourage them to inform their executors or close family members of their will's location.
By taking such precautions, testators can help prevent the presumption of revocation and ensure that their estate is administered according to their wishes.