14 Sep Even When A Will Is Lost, There Is A Way

Even when a will is lost, there is a way

Everyone should know that making a will is the only way you can determine what happens to your assets when you die.

But what if the will becomes lost and the original cannot be found after your death?

This can happen for any number of reasons.  Perhaps it has been left in the safe custody of a law firm and that firm is now no longer.  It may have been kept in a security deposit box with your bank and they have misplaced it.  Or it may get destroyed in a house fire or flood.

If you are named as an executor in a person’s will and you’re faced with this problem, don’t give up: even when a will is lost, there may still be a way to have the will, or a copy of part of it, approved by the Court as that person’s official will (the process known as “Probate”).

Yet proving the terms of a missing or lost will is never easy and we would recommend that you obtain legal advice and assistance if you are face with this problem.

If a will cannot be found, it may be presumed to have been revoked unless the circumstances surrounding the loss of the will can be explained and accepted by the Court.

“Revocation” of a will, put simply, means that will is cancelled and has no legal effect, whereby an earlier will is preferred by the Court, and if there is no earlier will, the Court determines that the person died “intestate” (ie having no will, whereby the law predetermines how that persons assets are distributed according to a statutory formula).

So it is fundamentally important to ascertain and determine whether a person left a will, by which is meant a signed original document that complies with the law as a valid will of that person.

There are a number of requirements before a Court will accept the terms of a lost or missing will to Probate, namely:

1.  There must be proof that there actually was a will (for example a photocopy):

If a person tells someone they made a will, and there is no evidence that such a will exists, then it will not be possible to get Probate.  There must be some evidence that a will actually exists, eg a photocopy.

2.  It must clearly revoke all previous wills (see above):

All wills invariably contain a clause stating that any and all previous wills are revoked by the will in question.  If a will is lost it cannot operate as a revocation of previously existing will.  Therefore, it must be proved that it revoked all earlier wills.

3.  The presumption that it was revoked by the will maker must be overcome:

If a will was last seen in the possession of a person and is not found in his or her possession after he or she dies, the law presumes that the person destroyed it with the intention of revoking it unless there is persuasive evidence to “rebut” that presumption.

4.  There must be evidence of its terms:

A will is ineffective if it does not contain provisions within it that dispose of one’s assets a certain way, even if execution of the document can be proved.  So it is possible for someone other than the will maker, eg a witness to a lost will, to give evidence to a Court as to the effect of the terms.

5.  Evidence of “due execution” ie that the make actually signed the will as his or her will:

As with all wills, with lost wills it is necessary to prove that the lost will was executed by the deceased person and that there were witnesses to that execution.

6.  The circumstances surrounding the loss of the will:

If the evidence is that lost will is not seen in the will makers possession after his or her death (perhaps it is held by a solicitor or a bank) then the will maker is not presumed to have revoked the will. Therefore, a certified copy of the original will can be admitted to probate.

7.  Details of the searches and steps undertaken to locate the original of the will:

Similarly, if the evidence is that the lost will was not seen in the possession of the will maker after his or her death, then the person seeking Probate will need to undertake searches (eg looking around in places where the original might be, or advertising for the missing will in the local newspaper) to rule out the existence of the original will or indeed any later will, before he or she can apply for Probate of the copy will.

8.  If there is a copy of the will, eg a photocopy or a draft, the accuracy of the copy or draft:

Finally, if a will is lost, and Probate is sought of the copy of the will, the evidence must establish that the copy is accurate and complete.

Obtaining Probate of a will can be an involved process, particularly where the original will is lost and all the executor has is a copy.  But with a copy or other evidence of the terms of a will, it is still possible by bringing together different forms of oral and documentary evidence to build a compelling case that the will, though lost, represents the final wishes of a deceased person with respect to his or her estate.

If you have a copy will and cannot locate the original, or believe a document represents a will of a loved one who has passed away, please do not delay.  Call us on 8276 7955 or email us at admin@dirosalawyers.com.au.