Occasionally,  a person passes away and the original of their Will cannot be located.  There could be a number of reasons why the original cannot be found – they might have kept it at home and it was thrown out by mistake, or their lawyers lost it – however at law there is a presumption that when an original Will cannot be found, it means that the Will maker destroyed it with the intention that it was revoked. 

This presumption can lead to significant issues in some cases, depending upon the terms of the Will.  What it means in effect is that the person who wants to have the copy Will carried out needs to convince the court that the presumption is “rebutted” – in other words, to convince the court that the will was not destroyed for the purpose of revoking it. 

The Queensland Supreme Court considered such a situation in the decision “In the will of Giuseppe Benito Sydney Calabro [2024] QSC 71”.  In that matter, Mr Calabro had died.  He was survived by his wife Roma Calabro.  The evidence showed that in October 2019, Mr Colabro and Roma Colabro met with a lawyer to give instructions for the preparation of their Wills.  In April 2020, copies of Wills were sent for their signing, and on 28 April 2020, both Mr Colabro and Roma Colabro signed their Wills before witnesses. 

The evidence was that the Wills were then posted back to the lawyer who received them and scanned them and saved copies of them into their online database.  The originals were put into the firm’s securities. 

After he passed away, the firm checked their securities, but could not locate the original of the Will.  There was no record of the firm having released the original Will to any person or receiving any instructions to destroy the Will. 

The matters to be satisfied for the court to give probate where the original will is missing are to prove:

  • That there was a Will;
  • That the will revoked all previous Wills;
  • That the presumption that the Will was destroyed (to revoke it) has been rebutted;
  • The terms of the Will;
  • That the Will was executed.

Usually, a Will contains a provision that it revokes all previous Wills.  Furthermore, usually a copy of a signed Will  will satisfy the tests at (a), (b), (d) and (e), assuming that it is signed correctly.

In this particular matter, the court accepted “as a matter of common sense and plausibility in the context of what appears to have been a relatively long marriage” that Mr Colabro would not have revoked the Will or made a new one without discussing that with Roma Colabro, and accordingly found that he did not do so.  The fact that the Will had never been released from safe custody, and that there was no evidence that Mr Colabro had made a new Will also lent in favour of a finding that the Will had been lost in the offices of the lawyers. 

As a result, it is always a good idea to keep a copy of the signed Will available as your own record in the event that the original Will is lost or destroyed.

For advice in respect of Wills, please contact our property lawyers Peter Muller at peterm@qbmlaw.com.au or Jessica Murray at jessicam@qbmlaw.com