Don’t remove those staples in that Will: How to deal with damaged Wills

Stop!  Before you un-staple that original Will to take a copy, take a few minutes to read this article and it could save you a lot of time and headache.  The simple act of removing the staples in your original Will or attaching another document to the will (by staple, clip or otherwise) could cause serious issues and raise questions as to the validity of your Will.  All too often lawyers come across Wills showing the telling signs of staple holes sans staples, indentations, or paperclip shaped rust marks on the paper.

The problem with these marks, holes and indentations, is that they need to be explained to the Court when applying for Probate.  They can all raise questions as to whether the document is a true reflection of the testator’s intentions and whether there have been any alterations (such as codicils made to the Will) or if any pages have been removed or replaced (whether fraudulently or accidentally).

In the event that you are an executor of a Will, and this has happened, you should make sure to leave the Will in its current state (re-stapling, binding or further clipping can just cause further issues to be explained) and seek expert legal advice as soon as possible.  A lawyer can assist you in preparing an Affidavit of Plight, Condition and Finding to explain to the Court what has occurred.  Whether this is sufficient to satisfy the Court, will depend on the circumstances and whether there is any evidence to suggest that there may have been alterations to the Will. 

Of particular concern, where others have an interest in challenging a Will’s validity, the existence of such holes or marks could potentially give grounds to contest probate application and even necessitate a hearing before a Judge (particularly if evidence exists that a Codicil was made at some time or another).  This obviously adds significant time and expense to administration of the estate, ultimately decreasing the value of the estate.

So – if you have realised this has happened to your Will – get in touch with our team to see whether you should prepare an Affidavit of Plight and Condition now, to keep with your Will, or whether you should prepare a new Will to avoid the potential issues that may arise.  If you are an Executor of a Will that has this issue, then seek expert advice as soon as possible so that evidence can be collated.

Always keep in mind that original Wills need to be stored safely, ideally bound and kept in a plastic sleeve or folder.  Remember if you do inadvertently remove that staple, keep calm and call your lawyer.

If you need advice or assistance regarding a damaged will, please reach out to our office today.