The Will Discovery Problem: Valid, Executed, and Nowhere to Be Found

English law examines a will's validity with great care and its findability not at all. The formalities of execution are policed at a single ceremony; what happens to the document afterwards — where it is kept, who knows it exists, whether anyone can produce it when its maker dies — is nobody's statutory business. There is no compulsory registration of wills in England and Wales, and whether a will is registered has no effect on its validity. Yet a will that cannot be found produces, in practice, the same result as a will that was never made: the estate passes on intestacy, or under an earlier document that happens to be producible. It does something stranger than leaving it to chance. Where a will was last known to be in the testator's own keeping and cannot be found at death, the law presumes the testator destroyed it intending to revoke it. Absence is read as intention. The presumption is rebuttable, and the leading authority on rebutting it — Sugden v Lord St Leonards — concerns the will of a former Lord Chancellor, drafted by his own hand, missing from a locked box that still contained its eight codicils. Probate of a copy or reconstruction is possible, by registrar's order, on evidence. The infrastructure that would prevent all of this exists in fragments. A statutory depository for the wills of living persons has operated since before the Senior Courts Act 1981 gave it its current footing, for a fee of £23; the Law Commission's 2025 report suggests its main defect is that too few people have heard of it. A commercial register holds the location of millions of wills, voluntarily. And sections 23 to 25 of the Administration of Justice Act 1982 — the statutory skeleton of a national deposit-and-registration scheme, with the Principal Registry of the Family Division as national body under the 1972 Basle Convention — have been on the statute book for forty-four years without ever being brought into force. In 2025 the Law Commission considered compulsory registration afresh and declined to recommend it. Discovery is therefore a household discipline by default; § 6 states the discipline.