Katie Alsop, solicitor, details the resources available when you are searching for the testator’s last will.
Research undertaken by Lightspeed for Will Aid in 2014 reveals that, despite an increase in people saying that they had made a will, this still only equates to 48% of people in England, Wales, Scotland and Northern Ireland having a will.
If you are executor of a will, or just need to find the last will, and are experiencing difficulties in locating it, what options are available? There are various methods by which searches can be conducted, and databases and organisations that may be used and approached, and these are outlined below.
Will storage and searches
It is a little known fact that the probate registry offers a storage facility for one-off payment of £20. It’s possible that a testator feels more comfortable with leaving their executed will in the hands of the probate registry than a firm of solicitors, and they may maintain this stance at the date of their death. The probate registry should therefore be approached, quoting full details of the testator, to enable a search of the wills that they hold in storage.Historical wills
To search for wills of those for whom grants of representation have already been issued, you can carry out a grant of probate search. This can be carried out online for grants issued after 1858, and a small fee (currently £10) is payable for the copy document (though the procedure differs in Scotland and Northern Ireland).
The reason that this may prove successful in revealing the last will is that if a grant of representation has been issued where a will exists, a copy of the will is annexed to the grant. Once a grant of probate is issued, it becomes a public document, and anyone can make enquiries through this facility and potentially trace the last will of a testator indirectly by first locating the grant of representation.
The Law Society
The Law Society operates local branches that can assist in the tracing of wills. It’s worth asking your local branch to request that they send an email to their members requesting that a search is made of their strongrooms. This is a cost-efficient way of accessing a large number of solicitors that are based in a particular area, so can be tailored to the location in which the testator resided:
- for the majority of their life
- for a significant period of their life
- when significant events took place during their life
- when they passed away
The Society of Will Writers and Certainty
Much is made of will writers being unregulated, there being no requirement for a will writer to be registered and therefore held accountable for their work. However, the Society of Will Writers holds the largest database of qualified will writers in the UK.
At the time of writing, there were 1,239 members of the Society of Will Writers. As with any research, the results are largely dependent on the quality of the information provided, and therefore the more information that is given, the better the search. Information such as previous addresses and alternative names should always be provided to assist the person conducting the search. A similar search can be made of the Certainty the National Will Register.
There’s no requirement to register a will, or give details of where it is located, but those who are conscious of dealing with matters before they pass away are arguably more likely to take steps to ensure that any survivors are able to easily locate the will that they have taken the time to make.
Solicitors Regulation Authority (SRA)
Understandably, as times passes and the economy changes, firms of solicitors come and go. In some cases, a firm of solicitors may be taken over by another practice, or where there are concerns as to how the firm is being run, the SRA may have cause to intervene, and this can result in a firm being closed down.
Where you have reason to believe that a will has been produced by, or is held at, a firm of solicitors that you are unable to contact, an internet search is likely to reveal whether that firm has merged with another, or has been intervened and/or closed down. In these circumstances, the first point of contact should be the SRA, which keeps a record of both individual solicitors and firms. This allows them to trace any mergers or buy-outs that may have taken place over the years.
The SRA will also be able to provide information regarding intervened firms, and provide details of who to contact in order to access documents which were previously held by the intervened firm. It's likely that this line of enquiry will lead you to another firm of solicitors dealing with the intervention, but the documents will have been taken into safe keeping to ensure that they are protected and can be made available to an executor, if enquiries are made.
Other resources that may lead you to a last will
Speak to friends and family
There’s always an element of common sense to be deployed in these matters, and it’s worth speaking to family members or neighbours who may have only a small piece of information that will help you to make further enquiries in your quest to find the last will of the testator.
If you have access to the testator’s papers, they should be carefully searched not only for the will, which can of course be the original (as there is no need for a solicitor or will writer to retain the original), but also other information that may lead to identifying the location of the will.
Letters from solicitors
Careful attention should be paid to any letters from solicitors, irrespective of whether they pertain to the drafting of a will. It’s often the case that someone will have a trusted solicitor that they will visit on any legal matter arises. It is not uncommon for life events, such as the purchasing of a property, or a divorce, to trigger the making of a new will, so enquiries should be made with the solicitor involved.
Correspondence with banks
Bank statements can also reveal information that may lead you to the last will. For example, direct debits made to a funeral provider in respect of a payment plan may lead to information that reveals where the last will is being retained.
As a matter of course, you should also contact the testator’s bank. A bank can be involved by virtue of having drafted a will for its customer, by being appointed executor of the will, or by simply providing a storage facility. Even in the event the testator’s bank is not known, it would be sensible to make enquiries of those banks that are local to the testator’s home address.
Advertising in the local press or in professional publications such as The Gazette (notice code 2902) reaches a significant audience and increases the prospect of the last will being found. When advertising, it is worth quoting former names or maiden names of a testator, in case that reveals a will that then leads to further information.Contact GP practices
It's also worth giving consideration to contacting local GP practices to firstly ascertain if the testator was a patient, and secondly, on receipt of a positive response, to enquire if anyone is noted as being the testator’s attorney or deputy. Contact with that person may well lead to discovering the location of the last will.A copy of the will may suffice
Although ordinarily it is necessary for the original will to be sent to the probate registry, along with the application for the grant of representation, in some circumstances, it is possible to use a copy, providing that there is no evidence to suggest that it is has been revoked.
An application is submitted to the probate registry, supported by evidence setting out the circumstances as to why only a copy is available. The probate registry, providing it is content with the explanation provided, then has the authority to issue a grant of representation based on the copy of the will supplied. Any solicitor proficient is the area of disputed wills will be able to guide you through this process.
About the author
Katie Alsop is a solicitor in the commercial litigation team at Wright Hassall. She specialises in contested wills, disputed estates and the removal and substitution of executors, and also advises on professional negligence claims.