Destroyed Or Lost Will - Proving A Copy In Scotland
Is A Copy Of A Lost Will Valid?
One of the most vexing questions dealt with by the Scottish courts relates to a lost will. If there is a copy available the question that the courts must answer is whether or not the original was genuinely lost and it continued to represent the testators wishes up to the date of death or was the original physically destroyed by the testator thereby either making that person intestate at the time of death or was there an intention that an earlier will should take precedence upon destruction of the later will.
In order to prove a copy of a lost will rather than an original there must be strong evidence supplied to the court in Scotland indicating that there is a real loss situation. It is not always straightforward to prove loss of a will and in the absence of overwhelming evidence a court is likely to find that the original was destroyed by or at the instruction of the deceased. This can of course have resounding consequences on a beneficiary who was included in the later will but not in the former will.
It is often of paramount importance to distinguish between a lost will and an accidentaly or deliberately destroyed will. If this kind of situation arises then legal advice should definitely be sought to ensure that all the options are made clear to you. This applies regardless of whether you find yourself in the role of executor, or in the role of a beneficiary (or potential beneficiary) where the will being recognised could have a profound effect on what you receive as a result.
Destroying A Will In Scotland:
To destroy a will and distinguish it from a lost will, you should burn it, tear it up or otherwise destroy it completely so as to leave no doubt about your intentions. If there are copies you should do all you can to retrieve them and also destroy them in a similar fashion. You should destroy the will personally or it must be destroyed by another person in your presence and at your direction. If a will is destroyed accidentally, it is not revoked and can still be declared valid if there is a copy available. Its validity would have to be proven in court. In addition it is always advisable that any new will should contain a clause revoking all previous wills and codicils. Revoking a will means that the will is no longer legally valid.
Is The Will Valid?
For any will to be recognised as being lawful it must have been created under certain circumstances. The will should have been witnessed properly and the witness should not be mentioned as benefiting from the will in any way nor should the witness be the testators spouse. The law also states that the person who is making the will should be fully able to recognise the importance of what they are doing. If any of these points are in doubt then the will may not be valid as far as the law is concerned.
Contesting A Will:
The law regarding contested wills is complex and it's important to get the right advice from an expert. Our panel solicitors deal with contentious issues on a no win no fee basis. If you would like free initial advice, without obligation, from one of our panel solicitors just use the contact form or phone the helpline.