What If the Will Is Lost or Destroyed?

Your father told you he made a will. He mentioned it several times. But after his death, you search everywhere - his files, his locker, his lawyer’s office - and the original is nowhere to be found.

Or worse: you find evidence the will existed, but it seems someone destroyed it.

Is his estate now distributed as if he died intestate? Are his wishes ignored?

Not necessarily. Indian law provides mechanisms to prove a lost will - but the process is complicated, uncertain, and often contested. Here is what you need to know.

The Basic Principle: Original Is Not Always Required

Indian courts have been clear on this point: the absence of the original will does not automatically invalidate the probate process if secondary evidence convincingly proves the will’s execution.

In Jamila Gulfam Desai v. Jamir Abdulmujir Shiledar (2024), the Bombay High Court granted probate based on secondary evidence even when the original will was unavailable and the executor had died. The Supreme Court in H. Siddiqui v. A. Ramalingam [(2011) 4 SCC 240] established that secondary evidence is admissible when foundational evidence proves the copy is a true copy of the original.

This is consistent with the Indian Evidence Act, 1872, which allows secondary evidence when the original is:

Lost
Destroyed
In possession of someone who refuses to produce it
Beyond the power of the person to produce

What Counts as Secondary Evidence?

Under Sections 63-65 of the Indian Evidence Act, secondary evidence of a document can include:

1. Certified Copies or Copies Made from the Original

If you have a photocopy, scan, or certified copy of the original will, this is the strongest secondary evidence.

2. Counterparts or Drafts

If the will was executed in duplicate, or if the lawyer retained a draft, these can serve as secondary evidence.

3. Oral Testimony

Witnesses who saw the original will, read it, or were present during execution can testify about its contents. This includes:

Attesting witnesses (who signed the will)
The lawyer who drafted it
Family members who saw it
Anyone who heard the testator explain its contents

4. Circumstantial Evidence

Letters, notes, or other documents that reference the will’s contents can corroborate testimony.

The Process: Probate of a Lost Will

To probate a lost will in India, you must file a petition in the appropriate court (High Court or District Court depending on jurisdiction and value of estate).

Step 1: Establish the Will Existed

You must prove:

A valid will was actually executed
It met the requirements of Section 63 of the Indian Succession Act (signed by testator, attested by two witnesses)
The testator was of sound mind when executing

Step 2: Explain Why the Original Is Unavailable

The court will want to know:

When was the will last seen?
Who had custody?
What happened to it?
Have all reasonable searches been conducted?

If the will was last in the testator’s possession and cannot be found after death, courts may presume the testator destroyed it with intent to revoke. This presumption must be rebutted.

Step 3: Prove the Will’s Contents

This is the challenging part. You must establish:

What the will actually said
That your evidence of its contents is accurate and complete

The Supreme Court has held (in H. Siddiqui v. A. Ramalingam) that when copies are produced in the absence of the original, there must be foundational evidence that the alleged copy is a true copy of the original.

Step 4: Address Any Objections

If anyone contests the lost will - claiming it did not exist, was revoked, or contained different terms - the court must resolve these disputes through evidence and testimony.

The Presumption of Revocation

Here is the biggest obstacle to proving a lost will: if the original will was last known to be in the testator’s possession and cannot be found after their death, courts presume the testator destroyed it with the intention of revoking it.

This presumption exists because:

Section 70 of the Indian Succession Act allows revocation by “burning, tearing, or otherwise destroying” the will
Courts assume a person who keeps their will would preserve it if they wanted it to take effect
A missing will from the testator’s possession suggests intentional destruction

Rebutting the Presumption

To prove a lost will over this presumption, you must show:

The testator’s intention was consistent with the will’s terms until death
- Did they speak about the will positively?
- Did they tell people what it contained?
- Would the will’s terms make sense given their relationships?
There was no opportunity or motive for intentional destruction
- Was the testator ill or incapacitated before death?
- Did someone else have access to the will?
- Is there evidence of foul play?
Alternative explanations for the loss
- The will was misplaced
- It was stolen
- It was destroyed accidentally (fire, flood)
- It was in the custody of a lawyer who lost it

When the Will Was Deliberately Destroyed by Someone Else

This is a serious allegation. If you believe someone destroyed the will to benefit from intestate succession:

Civil Remedies

File probate petition based on secondary evidence
Allege destruction by the party who benefits
Request the court to draw adverse inferences

Criminal Remedies

Destruction of a will to defeat its intentions could constitute criminal breach of trust
Filing a police complaint may be appropriate in egregious cases
Criminal proceedings can run parallel to civil probate matters

Proving Deliberate Destruction

You will need evidence such as:

The will’s contents would have disadvantaged the alleged destroyer
The destroyer had access to the will
The destroyer’s behavior after death is consistent with guilt
Testimony from others about the will’s existence and contents

Does Registration Help?

One common question: if the will was registered with the Sub-Registrar, does that protect it?

What Registration Does

Creates an official record of the will’s execution
The Sub-Registrar’s office retains a copy
Provides strong evidence the will existed and was properly executed

What Registration Does Not Do

Registration is not mandatory for a will to be valid
A registered will can still be revoked by a later unregistered will
Registration does not guarantee the will’s terms will be honored if a later will exists

Getting a Copy from the Registrar

If the will was registered, you can:

Apply to the Sub-Registrar’s office where it was registered
Pay the prescribed fee
Obtain a certified copy

This certified copy serves as excellent secondary evidence for probate. It may be the strongest form of secondary evidence available.

Practical Tips for Proving a Lost Will

Gather All Available Evidence

Search for any copies (physical or digital)
Contact the lawyer who drafted it
Contact the witnesses who attested it
Look for correspondence mentioning the will
Check if it was registered

Document the Search

Keep records of where you searched
Note who you contacted and their responses
Photograph the testator’s files and storage areas
This shows the court you made genuine efforts

Identify Corroborating Evidence

Bank records showing transfers consistent with the will
Property documents suggesting intended beneficiaries
Letters or emails discussing estate plans
Testimony from family and friends

Act Quickly

Witnesses’ memories fade
Documents get lost
Evidence of the will’s existence becomes harder to gather
The limitation period for probate claims is 12 years from death

What If the Will Is Found Later?

If the original will surfaces after probate proceedings begin (or after an intestate distribution):

Before Final Distribution

The court can consider the original will and modify its orders accordingly. This is the simpler scenario.

After Distribution

This is more complicated:

Beneficiaries under the will may need to sue for recovery
Properties already transferred may need to be returned
The court may need to unwind transactions

This is why courts are cautious about probating lost wills - once assets are distributed, reversing the process is painful for everyone.

Preventing This Situation

If you have made a will, take these steps to ensure it is found:

1. Multiple Copies

Keep the original in a safe, known location
Give copies to your lawyer
Give copies to your executor
Store a digital copy securely

2. Tell People

Inform your executor and key beneficiaries that a will exists
Tell them where to find it
Consider telling them its general contents

3. Consider Registration

While not mandatory, registration:

Creates an official record
Provides protection against loss
Makes it easier for heirs to locate the will

4. Digital Backup

Scan the executed will
Store it in secure cloud storage
Ensure your executor knows how to access it

5. Use a Secure Document Service

Services like Anshin allow you to:

Store digital copies of important documents
Designate who can access them
Ensure your will is found when needed

The 2025 Probate Reform

The Repealing and Amending Bill, 2025 proposes to omit Section 213 of the Indian Succession Act, which currently mandates probate for certain wills in specified territories (West Bengal, Mumbai, Chennai).

If enacted, this reform would:

Remove mandatory probate requirements in those territories
Make will execution simpler across India
Potentially reduce disputes over lost wills (since probate would be optional)

However, the core principles about proving lost wills would remain unchanged.

The Bottom Line

Scenario	Can the Will Be Proved?	Difficulty Level
Original lost, but registered copy exists	Yes	Moderate
Original lost, photocopy exists	Yes	Moderate-High
Original lost, witnesses available	Possible	High
Original lost, no copies, circumstantial evidence only	Possible but difficult	Very High
Original likely destroyed by testator	Presumed revoked	Extremely difficult to overcome
Original destroyed by interested party	Possible if proved	High, requires strong evidence

A lost will is not automatically a dead will. Indian courts can and do grant probate based on secondary evidence. But the process is uncertain, expensive, and stressful.

The simplest solution: make sure your will is never lost in the first place.

Your will is only useful if it can be found. Anshin keeps your important documents secure and accessible to the people who need them - so your wishes are honored, not lost.

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