Short answer – a lost will is considered to be revoked (i.e. cancelled) if it was lost by the testator, the person who made it. If it was lost by someone else, then it is still considered to be valid. Either way, submitting a copy of a will leave the estate open to a challenge as to its validity. This explains what to do where the will is lost, depending on whether you think it is invalid or enforceable.
Table of Contents
Lost Wills in England and Wales –
The strict rule and the presumption of revocation.
Where the original Will is known to have been in the testator’s possession (or under their control) before their death and cannot afterwards be found, there is a rebuttable presumption that the Will was destroyed by the testator with the intention of revoking it (Patten v Poulton (1858) 1 Sw & Tr 55; still the leading authority).
Practical effect:
The testator is treated as having died intestate, or if they made an older will, it may be that the previous will applies instead – which may include or exclude people who should not be included or excluded.
This presumption applies even if:
- everyone in the family knows exactly what the Will said,
- there is a perfect photocopy or signed draft,
- the testator repeatedly confirmed right up to their death that the Will remained valid.
How to rebut the presumption (prove a “lost will”)
The court may still admit a copy or reconstruction of the Will to probate, but the person seeking to prove it must satisfy the court on the balance of probabilities that:
- A valid Will was properly executed in compliance with s.9 of the Wills Act 1837.
- The Will was not revoked by the testator.
- The original was lost or destroyed either:
- after the testator’s death, or
- during the testator’s lifetime without their knowledge and contrary to their instructions (e.g., house fire, flood, cleaner threw it away, destroyed by a third party maliciously).
- The exact (or substantially exact) contents of the Will can be proved – usually by a signed copy, the solicitor’s file copy, or other cogent evidence.
Key modern cases confirming the approach:
Practical ways to avoid the problem entirely (recommended for every client in England and Wales)
- Deposit the original Will with HMCTS Probate Service (costs only £21 and is extremely safe).
- Leave the original with the solicitor who prepared it (most firms store Wills for clients).
- Have the testator and witnesses sign multiple duplicate originals.
- Never take the original home if possible.
- Consider including a short clause:
“I declare that if this my last Will cannot be found after my death it shall be presumed to have been lost or mislaid and not revoked by me.” – the may be persuasive but it is not a warranty or guarantee to protect the will from revocation. - It is possible to make an irrevocable will but they’re generally not used – they’re thought to be too high risk and problematic e.g. if you make or receive gifts after you’ve made an irrevocable will are those gifts included or excluded from the will ? It all depends on intention, which is very hard to prove without compelling evidence
CONTACT US FOR ADVICE IF YOU HAVE LOST YOUR WILL – we offer deeds and wills storage also
Bottom line for England and Wales
If the original was last known to be in the testator’s possession or control and it is almost always presumed revoked unless there is clear, cogent evidence of accidental loss and the contents can be proved.
The simplest and safest course is to ensure the original is stored with the solicitor or with the Probate Registry from the moment it is signed.
The case of Patten v Poulton (1858) 1 Sw & Tr 55 is a foundational English court decision concerning the presumption of revocation of a will. The case established that the presumption that a will, known to have been in the testatrix’s custody and not found at her death, was destroyed by her with the intention of revoking it (animus revocandi), is a prima facie presumption only and may be rebutted by other evidence.
This presumption can be overcome by probable circumstances, such as declarations of unchanged affection and intention towards the beneficiaries. The court held that it is not necessary for the party seeking probate to prove how the original will was destroyed or lost, provided they have established the factum of the original instrument and provided sufficient secondary evidence of its contents. The case involved Julia Clarenza, who had executed a will in 1837 dividing her property equally among her three children and appointing James Patten as executor; the will was not found after her death in 1846, leading to the legal dispute over its validity and the presumption of revocation.