If a will has been lost and an office copy exists, could an application for an executor dative appointment be made? The Professional Practice team says no

The Professional Practice Committee considered the possible pitfalls that some solicitors may face in advising clients where a will has been lost.  

It was asked to consider whether in an executry an application for a dative appointment could be made where it is known that there was a will which has been lost but a copy is available on which the tenor can be proved. Also, if the will provisions are equivalent to how the estate would devolve on intestacy, to save time and expense could an application for a dative appointment be made?

The committee took the view that an executor is required to sign a declaration in the C1 inventory form. The form states: “That I do not know of any testamentary settlement or writing relating to the disposal of the deceased’s estate or any part of the deceased’s estate other than that mentioned in paragraph 2”.

Paragraph 2 is a declaration regarding any will attached.

There appears to be a belief among some members of the profession that in an executry where it is known that there was a will, which has been lost, but a copy is available on which the tenor could be proved, the court would not be misled in considering a dative appointment petition.

At a recent meeting, the committee reaffirmed that this position is incorrect, and the correct course of action is to prove the tenor of the will.

If a solicitor or executor does know of the existence of the will, including the existence of a copy of a will of which the tenor can be proved, such a declaration in the C1 form would be false. The cautioner would also be misled. The committee agreed that members should not make a false declaration or advise an executor to do so. It is of concern that executors could be being encouraged to sign the form confirming there is no will when a copy is available.

The committee’s views were that if a will is lost, the following three things could happen: (1) an action is raised to prove the tenor of the will; (2) the action to prove the tenor fails; (3) the action is not raised because there is insufficient evidence in the opinion of the solicitor or putative executor/beneficiary to do so.

Each case would depend on its own circumstances. An action for proving the tenor would be appropriate if, for example, a copy of a will had been sent to a client who had been told a practitioner was holding it in safe keeping, but the practitioner could not then produce it having received no mandate but having suffered fire or flood in a secure storage facility which resulted in loss of the principal will. 

The committee wish this issue to be raised among members to prevent them falling foul of a professional misconduct complaint.

The Author
Lucy Durie has recently joined the Law Society of Scotland as a senior solicitor in the Professional Practice team 
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