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My Late Mother’s Original Will is Missing. Should I be worried ?

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Question from a recent caller.

My mother has recently passed away. I know that she made a will as I have been given a copy of same by the Solicitor who made the will. That Solicitor said that my mother took up the original will but I do not know where it is. What can be done?

In the first instance a thorough search should be made among her papers to see if the original will can be located. You should also check with her bank and with any other Solicitor whom she may have used.

If the will still cannot be located,then it would be as well to consult a Solicitor as an application to the Probate Court for a determination may be required.

That Solicitor will make further and extensive enquiries and may put a notice in the Law Society Gazette to see if any other firm of Solicitors has the original will where it may have been subsequently deposited or knowledge as to its whereabouts.

If the original will cannot be traced,then the question will arise as to whether or not the original will was destroyed by your late mother with the intention of revoking same. If it  was held by her and no one can confirm that it was still in existence after her death ,then there is a presumption that she intended to destroy sameanimo revocandi – unless evidence to the contrary can be produced, although the presumption may be difficult to overcome. If for example, it could be shown that the will was destroyed by accident or if it could be established that your mother did not have the capacity to revoke it during the period when it was in her custody, it may be possible to prove the will on foot of a copy thereof.

Incidentally the presumption of destruction  animo revocandi  does not apply where a will goes missing in a Solicitors office where evidence can be adduced to explain the situation.

If the presumption of revocation cannot be rebutted and she did not make a previous will, she may be deemed to have died intestate or alternatively a previous will made by her may come into effect. It would be as well to get a determination from the Probate Court as to whether or not the will can be proved on foot of the copy and if not as to what is to happen.

I’d like to acknowledge the contribution of Michael O’Dwyer, Solicitor with Early & Baldwin Law Firm for his contribution to this article.

LegalEagleStar , Thursday , 26th. July , 2012 .

Written by LegalEagleStar

July 26, 2012 at 4:04 pm

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