What if an original will is lost?

In administering an estate, it is necessary to have the original of the last Will.  This is for a number of reasons, one of which is that there is a presumption that if an original Will cannot be found, then the Will maker destroyed it so as to revoke it.

If there is no last Will because it has been revoked, and if that Will (before being revoked) revoked previous Wills, then the Will maker will have died in testate and the Will maker’s estate will be given in accordance with the rules of intestacy. 

Occasionally however, circumstances arise where a Will might be lost or destroyed without the intention of it having been revoked.  For example, the Will might be destroyed in a fire or flood, or it might have been lost. 

Situations in which photocopies of Wills that had been lost have been admitted to probate have been considered by the Supreme Court.  The NSW Supreme Court, in Cahill v Rhodes [2002] NSW SC 561 found that in order to admit the record of a lost Will to probate, five matters must be established:

  1. That there actually was a Will or similar document;
  1. That this document revoked all previous Wills;
  1. That the presumption that the Will maker destroyed the original of the Will with the intention of revoking it is overcome (ie there is another more likely explanation for the original being missing);
  1. There is evidence of the terms of the Will;
  1. There is evidence of the execution or the intention of the Will maker for the document to constitute their Will.

That test has been approved by the Queensland Supreme Court and relied upon in various matters including in circumstances where it appeared that the original Will had been lost by a hospital, and in circumstances where it appeared that the Will had been stolen from the lawyer’s car.

For matters concerning estate planning, Wills, probate and estate litigation, please contact Jessica Murray at jessicam@qbmlaw.com.au or Peter Muller at peterm@qbmlaw.com.au