What happens if the original Will cannot be found?

When a person dies, and they had a valid Will, their executor will apply for a Grant of Probate to administer the estate, including distributing the assets of the Will-maker in accordance with the Will. There can only ever be one original Will (and there may be several copies of that document).

The original Will is one document required for a Grant of Probate in Queensland (and most other states and territories of Australia).

So, what happens if that original Will is lost or missing?

What is a Will?

A Will is a legal document that specifies your wishes for your estate after you die. A Will contains who you would like your estate (all your assets) to go to (that is, who your beneficiaries will be) and who you have chosen to carry out your wishes (your executor) and administer the distribution of your estate after you die.

The original Will is the actual document that the Will-maker and the witnesses have signed. In most cases, an original Will is carefully stapled and bound. Any evidence that this binding has been tampered with can raise questions about the validity of the document.

An original Will is usually required for a Grant of Probate

In Queensland, a Grant of Probate is the official recognition that a Will is legally valid. A Grant of Probate is a Supreme Court of Queensland document recognising the Will as being the last valid Will of the deceased and is the authority for the executor to administer the estate. Executors and administrators of deceased estates must seek a Grant of Probate before they can deal with the estate’s assets.  

To apply for a Grant of Probate certain documents must be submitted with the application. This includes the original Will. If the original Will cannot be found, then there is a different procedure which must be followed to obtain a Grant of Probate.

Procedure where an original Will cannot be found

Where an original Will cannot be found, an application must be made to the Supreme Court of Queensland, which is heard by a judge.

Five matters must be established, including:

1. that there actually was a Will;
2. that it revoked any previous Wills;
3. overcoming the presumption that the Will was destroyed with an intention to revoke it;
4. evidence of the terms of the Will; and
5. evidence of due execution of the Will.

For due execution of the Will in Queensland, it must be:

• made by someone over the age of 18 years;
• made by someone who has legal capacity (for example, a person diagnosed with advanced dementia cannot write a valid Will);
• be in writing;
• signed and dated by the testator in the presence of at least two witnesses (who are over the age of 18 years). The two witnesses must sign the Will in the testator’s (the Will-maker’s) presence and the presence of each other, and they cannot benefit from the Will or know someone who will benefit from the Will.

Making proper and reasonable enquiries if an original Will is lost or missing

Affidavit material that is filed with the application for a Grant of Probate should indicate that ‘proper and reasonable inquiries’ have been made to locate the missing original Will. Applicants (for example, the executor) will often hire a law firm to assist with these inquiries.

Reasonable and proper inquiries may include, for example:

• conducting a thorough search of the deceased’s home;
• contacting family members and/or beneficiaries to ask if they know of the original Will’s whereabouts;
• contacting the lawyer who prepared the Will, the Public Trustee, and the Queensland Law Society;
• contacting any financial advisors, accountants, banks, and solicitors of the deceased to check if the original Will is in their possession;
• placing an advertisement in the Queensland Law Reporter for the lost Will, together with publishing notices in relevant newspapers.

Case review for missing original Will: Lemon v Lemon

In Lemon v Lemon, the applicant was seeking a Grant of Probate where the original Will was missing. Mrs. Lemon, the daughter of the deceased, applied for probate using a photocopy of the Will.

This case provides a good illustration of how the five matters that must be established in the procedure to follow if an original Will is missing (outlined earlier in this blog):

1. The solicitor who prepared the Will was able to provide evidence that there actually was a Will. While she did not have direct memory of it, she recognised her signature on the photocopy and that of her secretary as witnesses. She also swore that, according to her records, the original document was given to the deceased.
2. The photocopy showed on its face that there was a clause revoking all previous Wills.
3. There was evidence that the deceased’s husband had a history of being a ‘minimalist in terms of possessions.’ He was known to have thrown out, for example, family photographs that were of considerable sentimental value. Following a stroke, Mrs Lemon said that her father’s ‘… mental health deteriorated and his compulsion to throw things out appeared… to increase.’ There was no evidence that the deceased made another Will or ever gave the original Will to somebody else. Given the evidence of her husband’s compulsion and mental capacity, this supported the inference that he had thrown out her Will without her consent or instruction. The presumption that the Will was destroyed with an intention to revoke it was therefore rebutted.
4. The terms of the Will were evidenced in the photocopy of the Will.
5. There was evidence from the solicitor that an original Will was executed by the deceased, and was properly witnessed. There was no challenge to testamentary capacity or the legitimacy of the photocopy.

The photocopy of the Will was, therefore, admitted to probate.

How can I prevent my original Will from being lost or going missing?

If your solicitor prepares your Will, they will usually have a safe custody facility where they can store the original for you at no charge. You can then provide copies of the Will to your executor(s) and beneficiaries if you wish. If you pass away, your executors can contact the law firm and organise for the original Will to be sent to them.

If you hold your original Will, you should store it somewhere safe that is fireproof and waterproof and inform your executors where it is being stored.

Get help from a Wills and estate planning lawyer

The process of applying for a Grant of Probate where the Will is missing or lost is more complicated than an application accompanied by the original Will. However, it is still possible. If you require any assistance with an Application for a Grant of Probate of a missing Will, please do not hesitate to contact one of Wills and Estates lawyers.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au

Find this article useful or interesting?

You may also like to read:

• Undue influence and coercive behaviour towards a Will-maker
• Can I make handwritten changes to my Will?
• Contesting a Will - who can challenge my Will?