What Happens When an Original Will and Two Copies Exist, but One Copy is Lost?

In a scenario where a person possesses an original will and two copies, but unfortunately, one of the copies is lost, there is no immediate impact on the legal standing of the document. As long as the original will is intact, legal proceedings and probate can proceed as usual. However, the situation becomes more complicated if the original document is lost, leaving only a single copy and no draft.

Understanding the Legal Significance of the Original Will

The primary document that matters in a will is the original. It serves as the official record that dictates the distribution of assets and the executorship of the estate. Storing the original will in a safe, easily accessible place that is known to the designated personal representative is crucial. Should the need arise, the personal representative can present the original will for probate in court.

What if Only One Copy is Lost?

If the original will exists and only one of the copies is lost, nothing changes in the legal process. The presence of the original will is sufficient for probate and any other legal proceedings. The lost copy, while inconvenient, does not affect the validity or probate of the will.

Probate and the Lost Will Scenario

When the original will is lost, and there is no newer will or a draft copy, the situation is more complex. Section 238 of the Indian Succession Act 1925 comes into play. This section provides that when a will is lost or destroyed, and no copy or draft is preserved, probate may still be granted if the contents of the will can be proven by evidence.

Principles of Law concerning Lost Wills

The principle of law in this context is to grant a probate if possible, even if it is a partial grant. Various judicial decisions have consistently upheld this principle. For example, in Kedarnath v Sarojini, probate was granted on part of the will where the other part was lost. Similarly, in Kedarnath v Raj Kumar, partial probate was granted for the part of the will whose other part had been lost.

The contents of a lost will, like any other lost document, can be proven through secondary evidence. Secondary evidence includes the testimony of a witness who has seen the original will, provided that the witness's veracity and competence are not questioned. A single witness, even if interested, can provide sufficient evidence to prove the contents of the will, if their testimony is credible.

Role of Secondary Evidence in Proving Lost Wills

Section 635 of the Indian Evidence Act 1872 states that the contents of a lost will can be established by secondary evidence. This evidence could include the oral testimony of someone who has personally seen the original will. The court's role is to scrutinize the evidence and determine the authenticity and veracity of the claims made about the lost will.

However, initially, a court may be hesitant to grant probate based solely on secondary evidence. Section 238 of the Indian Succession Act 1925, which permits the grant of probate even when part of the will is lost, must be emphasized in such cases. The court should be informed that the principle of law favors granting probate if it is possible to establish the contents of the will through credible evidence.

Conclusion

In summary, if an original will and two copies exist, and one copy is lost, the original will remains the key document for probate. Losing a copy is inconvenient but does not invalidate the original. If the original is lost and no draft or newer will is available, the grant of probate can still be facilitated if the contents of the lost will are proven through credible secondary evidence. Seeking legal advice is essential in such situations to navigate the complexities of probate and uphold the wishes of the deceased.