Updated: Oct 13
When a person dies leaving a valid Will, the executor generally applies for a Grant of Probate, formal recognition by the Supreme Court of Queensland that the Will is valid and that the executor is authorised to administer the estate.
A key requirement of this application is providing the Supreme Court with the original Will, of which there can only ever be one.
But what happens if the original Will is lost and only a copy remains? Let's explore the legal implications of a lost or missing original Will and the steps required to prove a Will.
In This Article:
Making Enquiries To Locate A Missing Will
In Queensland, no central government registry holds Wills. As a result, family members or executors may find it difficult to locate the original Will, particularly if it was kept in a private location the deceased did not disclose.
If the original Will cannot be found, you must demonstrate that you have made proper and reasonable inquiries to locate it. This is a critical part of any affidavit material filed with the probate application.
Such enquiries may include:
A thorough search of the deceased’s house and personal files
Contacting family members, beneficiaries or close friends
Contacting the solicitor who prepared the Will, the Public Trustee and the Queensland Law Society
Enquiring with banks, accountants, financial advisers and other professional contacts
Placing advertisements in the Queensland Law Reporter or relevant local newspapers requesting information about the Will.
Whilst these items may sound daunting, it is important that if you believe a Will is missing that you engage an experienced estate lawyer, such as the team at RHC Solicitors, to guide you through the necessary steps.
Who Had The Original Will Last?
If the deceased was last known to have had possession of the original Will, the law assumes they destroyed it with the intention of revoking it. This is known as the presumption of revocation.
This presumption often results in:
a prior valid Will being admitted to probate (where one exists), or
the estate being distributed under Queensland intestacy laws if no prior Will can be found.
If someone else was last known to have the original Will, the Court is less likely to assume the deceased intentionally destroyed it. Instead, the focus often shifts to locating the original or proving that a copy accurately reflects the deceased’s intentions.
If there is suspicion that the person in possession of the Will is withholding it or intentionally destroyed it, an executor or interested party (e.g., a family member or beneficiary) may also take legal action. The Court may order an investigation or ask the individual to provide the Will or evidence regarding its whereabouts.
Ultimately, the Court will consider all available evidence, including the relationship between the deceased and the person who had possession of the Will, to determine the most appropriate course of action.
If The Original Will Is Missing
When applying for probate with a copy of the Will instead of the original, the court may accept the copy under certain conditions, but the process can be more complex and require additional evidence.
In In the Will of Nina Elizabeth Mary Greer [2022] QSC 136, Justice Bradley of the Supreme Court of Queensland admitted a copy of a Will for probate.
In making this decision, Justice Bradley referred to five criteria which must be satisfied to admit a copy of a Will for probate:
Whether there was a Will (which was the basis for the copy submitted in the application)
The document revoked all previous Wills
That the presumption of revocation does not apply
There is evidence of the Will’s terms
The Will was properly executed and witnessed
Justice Bradley was satisfied that the necessary legal requirements had been met, including overcoming the presumption that the Will had been deliberately revoked or destroyed. The Court accepted the evidence that the original Will was likely lost while in the custody of the deceased’s former solicitor and not by any act of the deceased herself.
Evidence Required
To support an application for a grant of probate using a copy of a Will, comprehensive evidence and affidavits must be obtained and supplied, which may include:
the last known location of the original Will and who had possession of it
proof that the deceased knew and approved of the contents of the original Will (e.g. that they had testamentary capacity)
confirmation that the original Will was properly executed in accordance with relevant legal requirements
any evidence of the deceased’s words, actions or circumstances indicating their intention for the Will to remain valid
an explanation of how the original Will was lost or evidence rebutting the presumption that it was intentionally destroyed to revoke it
details of all efforts made to locate the original Will (see above)
information about any individuals who might be adversely affected by the copy being admitted to probate, including whether they consent to the application and have the legal capacity to do so
Remember that applying for probate based on a copy of a Will can cause significant delays and additional costs to the estate.
Consequences Of A Lost Will
Losing an original Will can have significant legal and practical consequences.
Beyond the added legal and third-party costs, stress and delay involved in applying to the Supreme Court for probate of a copy, there is no guarantee the application will succeed.
If the Court is not satisfied that all necessary requirements have been met, the estate may be administered as if the deceased died without a Will (dying intestate) or in accordance with a prior valid Will (where one exists) that is admitted to probate.
This can often mean the deceased’s wishes, as expressed in the lost original Will, will not be followed. As a result, intended beneficiaries may miss out entirely or receive less than expected, which can lead to further disputes and litigation over the estate.
Engaging an experienced, reputable estate lawyer as soon as you suspect the original Will is missing, whether or not a copy exists, is essential to navigate the next steps and give any probate application the best possible chance of success.
How To Prevent Your Will From Being Lost Or Destroyed
To avoid the challenges seen in cases like In the Will of Nina Elizabeth Mary Greer [2022] QSC 136, we strongly recommend following some basic principles to ensure your original Will is safe:
Have your Will prepared and stored by a solicitor with a safe custody service, such as the one offered at RHC Solicitors
Inform your executors and/or close family members where the original Will is stored
Regularly review your Will to ensure it accurately reflects your current wishes
If your executors cannot find the original Will when the time comes, it may lead to legal complications, increased costs, and delays in administering your estate.
Need Help With Wills And Probate in Queensland?
Whether you're making a Will, acting as an executor, or applying for probate when the original Will is missing, our experienced estate lawyers are ready to guide you through this complex and difficult time. Contact our team to schedule an initial consultation and learn how we can help.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current, and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication are those of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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