What if a Will Gets Lost? Not the End of the World by any Means.....

I believe Benjamin Franklin coined the phrase "a place for everything, everything in its place," and how wise he was. My wife Patricia (who is my "in-house" cartoonist, by the way, having sketched all the drawings on my blog, so thank you, my good missus!), a very organised person by nature, often reminds me of this adage when I'm searching for a lost item myself!

Unfortunately, like everything, wills are occasionally lost, and it might seem that the end of the world is nigh but there is a way out. If a novena to St. Anthony does not work, there is a procedure in place where an application can be made to the Probate Office to administer someone's Estate based on a copy of the will. However, it is generally better to avoid this route due to the associated costs and time delays. Therefore, one important piece of advice is to ensure that your last Will and Testament is stored in a safe place. Typically, solicitors retain original wills in a secure wills safe; however, some clients may choose to keep their original wills themselves or might attempt to create a will at home.

If a will cannot be found after the testator's death, there is a legal presumption that the testator destroyed the will with the intention of revoking it. However, this presumption can be challenged if there is evidence to the contrary. Hopefully, a copy of the will is available somewhere. The applicant must provide evidence of the will's contents, the circumstances under which it was lost, and any evidence that supports the claim that the will was not revoked. This might include testimony from witnesses who have seen the will and were aware of its contents. Affidavits will be required to explain the circumstances of the loss and to affirm that the will was not destroyed with the intention of revoking it. The court has the discretion to accept a copy of the will or other evidence of its contents if it is satisfied that the original was not revoked and that the copy accurately represents the testator's intentions.

This matter was brought before the High Court on November 21st last concerning the estate of Patrick (also known as Paddy) Quinn, late of Carn, Ballybofey, County Donegal, and was heard by Ms. Justice Siobhan Stack.

Patrick Quinn, who lived in Carn, Ballybofey, County Donegal, made a will on November 23rd, 1992, naming his sister Elizabeth (Lila) Quinn as the executrix and sole beneficiary of his will. Patrick Quinn died on November 24th, 2015, and, unfortunately, the original will could not be found. As a result, his next of kin took steps to administer his Estate as if he had died intestate, wishing to distribute his Estate among them.

His sister, Elizabeth Quinn, brought this court application to admit a reconstructed copy of the will to probate, even though a full copy was not available.

The solicitor who drafted the will maintained a detailed will register, which confirmed when the will was made and who the witnesses were, and there was also available documentation through the solicitor's attendance notes regarding the will's contents. When the original solicitor retired in 2006, he handed over his wills and files to another solicitor's firm. The judge was satisfied that the original will was lost within the office of the second solicitor. Furthermore, the judge determined that Patrick Quinn had never retrieved his will from this second solicitor.

Patrick Quinn's next of kin acknowledged that a will was made and did not dispute its contents. However, they argued that Patrick likely picked up his will from the second solicitor and destroyed it, thus revoking it.

Ms. Justice Stack did not accept this possibility. Given that the deceased was very close to his sister, who was the sole beneficiary of the will, she could not see how he would have destroyed his will, leading to him dying intestate with his estate passing among all of his next of kin.

The court decided that Mr Quinn's Estate should be administered in accordance with the reconstructed will, with his entire estate passing to his sister, even though neither an original nor a copy of the will was available.

This case highlights the importance of securely storing all legal documents, particularly wills. Complications and disputes can arise when original documents are lost or misplaced.