Often, this is straightforward but there are times when people can’t find the principal will. And, unfortunately, it’s usually not possible to wind up an estate without it, even if you have a copy.
In those situations, you’d need to prove what’s called the “tenor” of the will — essentially its terms. And that’s the process I’ll explain here in the latest blog post in my contentious trusts and executries series.
Is an action to prove the tenor of a will necessary?
If you can’t find the principal will, the first point to consider is whether court action is necessary.
If you have a copy of the will, it should be checked to see if the distribution of estate assets is different from the distribution under the laws of intestacy (which apply when a person dies without a will). If the answer is yes, then court action will be required.
Who are the parties to an action to prove the tenor of a will?
Executors nominated in the missing will usually raise these actions, but anyone who is a beneficiary also has title and interest to do so. The beneficiaries under the missing will, and any person who would benefit from the estate under the laws of intestacy, must be called as defenders to the court action.
What test must be met for the court to grant an order proving the tenor of a will?
To persuade the court to grant an order proving the tenor of a will, it is necessary to establish that —
The deceased executed a will
The tenor of the will (i.e. its terms)
The circumstances surrounding the loss of the will
The steps that have been taken (unsuccessfully) to find the principal will
What is the procedure in an action to prove the tenor of a will?
An action to prove the tenor of a will can be raised at the Court of Session, or the sheriff court.
A writ must be presented to the court explaining how the above test has been met. Affidavits have to be submitted at the same time from any witness to the deceased's signature on the will; the solicitor(s) who drafted and stored the will; and those who have tried to locate the principal will.
What happens if an action to prove the tenor of a will is undefended/defended?
If the action is undefended, then a minute can be lodged with the court asking the court to grant an order proving the tenor of the will without a hearing. This is how most actions of this kind proceed.
If the action is defended, the court will fix further procedure in the case, most likely a full evidential hearing.
What is the effect of an order proving the tenor of a will?
Once a court order has been granted proving the tenor of a will, the court order is treated in the same way as a principal will. This allows executors to wind up the estate in the normal way.
Conclusion
The loss of a loved one’s principal will after their death may compound an already stressful situation. However, all is not lost. There are steps you can take to prove the tenor of a lost will, ultimately allowing the distribution of the estate in accordance with the deceased’s wishes
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