Probate applications require production of the original will. But sometimes despite extensive searching the original will can’t be found. Was the will last known in the deceased’s possession?
Sometimes a copy of an executed will (copy will) of the deceased is available. Was it the last will? Short of an intestacy, can a copy will be used in an application for probate?
In certain circumstances a Court will recognise a lost will and admit a copy of it to probate. Some instances where this has been permitted are mentioned below.
In situations of a lost will courts have noted consideration must be given to the possibility that the will was missing because of deliberate destruction by the testator, or another person at the deceased’s direction with the intention that it be revoked (cancelled).
- Consequences of a lost will – presumed revoked: an intestacy
- The presumption of revocation
- Seeking probate of a copy will – essential matters to establish
- Strength of the presumption
- Some examples of probate applications with copy wills
Consequences of a lost will – presumed revoked leading to intestacy
It is not unusual for original wills to be lost or misplaced despite extensive searching. Lost wills have been the subject of much judicial commentary. When an original will can’t be produced after death, the law presumes that the deceased disliked what it said and destroyed it with the intention of revoking (cancelling) it. This legal principle is referred to as the presumption of revocation.
The strength of the presumption depends on the circumstances. If not an intestacy results and the deceased estate is distributed according to the statutory rules on intestacy.
No will? Law presumes willmaker destroyed
When an original will which was thought to be in the possession of the willmaker but can’t be found when they die, the law presumes that they destroyed it with the intention of revoking (cancelling) it.
The law has long recognised this principle of presumption of revocation.1 It has been identified, explained and considered in a series of cases going back to the early English common law.
But all is not lost, the presumption of revocation is rebuttable, depending on the circumstances. The onus or responsibility for doing so is on the person applying to the court for proof of a copy of the original will in such circumstances of a lost original, when no later will has been produced.
They must disprove or refute it with factual evidence, and of the circumstances implying that it was improbable the deceased intentionally destroyed their will intending to cancel it. It may be that the will simply went missing or was lost. The evidence is given such weight as the particular facts and circumstances suggest.
Proving a copy will for a grant of probate – essential matters
Court decisions have identified certain matters which must be established with evidence when seeking probate of a copy of a missing original will.2 One such case was before the SA Supreme Court, mentioned here. Generally the matters to be considered4 include:
- That there actually was a will, that is, the original will existed;
- That it revoked all previous wills;
- The applicant must overcome the presumption that when an original will is not produced it was destroyed by the deceased with the intention of revoking it;
- There must be evidence of the terms of the original will;
- The copy will is an accurate and complete copy of the original will;
- There must be evidence the will was properly executed according to law; or if
- The original will did not fulfil the formalities required by legislation, it satisfies the legislative requirements allowing it, as an informal will, to be admitted to probate;
- that thorough searches have been conducted to find the original will, including publishing advertisements, conducting reasonable searches and enquiries;
- The existence of the will after the death of the willmaker and its most likely whereabouts, where was the original will was kept? With solicitors, at the deceased’s home or some other storage facility?
- the circumstances surrounding the absence of the original will;
- that all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris (have legal capacity); and
- that the presumption of revocation does not arise or has been rebutted3 providing evidence in support.
As judicial commentary emphasises throughout the cases, there is a need for clear and convincing evidence of the existence of a lost will to be produced to the court.
Strength of the presumption
The strength of the presumption of revocation is gauged by the evidence. For example courts have said that where the will makes a careful and complete disposition of a willmaker’s property and there are no other circumstances pointing to its probable destruction, the presumption of revocation is weakened. And in some cases said to be so slight that it may be regarded as not to exist.4
The character of the willmaker’s custody of their original will is also considered.5 For example if where the original will was last known to be in the custody of a law firm when the deceased died. The presumption of revocation that the deceased destroyed their will is not applicable in such circumstances.
Some examples of probate applications with copy wills
The deceased had executed a will he had prepared himself. It was signed in the presence of two witnesses present at the same time. The execution of the will was not in question. Subsequently the original will went missing, but a copy of it existed. The executor sought permission from the Northern Territory Supreme Court to prove a copy will and if proved, an order for probate.
Solicitors for the executor placed advertisements and made enquiries to find the original. Family members searched extensively. Evidence was produced that the deceased kept his original will at his home. Due to ill health he had to leave his home. The home was then cleaned out. The Court accepted evidence that the original will was accidentally disposed of, or simply lost in the clean-up.
From all the evidence and circumstances the Court was satisfied on the balance of probabilities that the deceased did not destroy his will with the intention of revoking it. The presumption of destruction was rebutted and the Court granted probate of the copy will.6
In South Australia the executor sought a grant of probate of a copy of a will. Examining the evidence, including from the solicitor who prepared the deceased’s last will, the Court was satisfied that the copy will was an accurate and complete copy of the original. Thorough searches and advertisements had not located the original. The elderly deceased lived alone and died at home. The home had been broken into in the past. Evidence showed that the deceased was the last person in possession of the original. This raised the presumption of revocation that she had destroyed the original intending to revoke it.
However on examining the evidence, including from the solicitor who prepared her last will, the Court was satisfied that the copy will was an accurate and complete copy of the deceased’s original will.
Further, the Court found that evidence of the events which occurred subsequent to the deceased executing the original will did not reveal anything showing she had any reason to revoke it by destruction. Even though the original couldn’t be found, it was more likely than not that the reason for it being missing was something other than that her destroying it with the intention to revoke.
The Court concluded that the strength of the presumption was weakened to such an extent that it was overcome, and so rebutted. Probate of the will contained in the dated copy was granted to the executor.7
In Queensland the deceased attended the offices of the law firm who had prepared her will. It was duly executed in front of two witnesses. Some years later this firm merged with another law firm. The will was kept in safe custody throughout.
Before she died her attorney engaged a different firm to act on her behalf. He authorised for her documents held at the previous law firm, including her original will to be transferred to the new firm. Following her death an unsigned copy from this firm was used to commence the probate application as the original will could not be found, presumed lost.
Initially the Court requested further searches. This resulted in discovery of a photocopy of the executed and properly witnessed will found among personal papers of the deceased in an envelope identified as her last will. The deceased’s signature was verified by one of the attending witnesses from the first firm who had prepared it. The contents of the executed copy will were found to be identical to the contents of the unsigned copy.
The probate application was amended attaching the executed copy will. The issues were whether the presumption of revocation applied or whether it was rebutted by the evidence, and whether the Court should grant probate over this copy will.
The Court was satisfied on the evidence that when the deceased died, the original will was last in the custody of the last law firm and not in her possession. Consequently the Court said the presumption of revocation did not apply. The absence of the original will was accounted for by its being lost by the last law firm, and that was sufficient to rebut the presumption, if it arose. Accordingly probate of the copy will was granted.8
In Victoria a copy will was not admitted to probate. The original was last known to be in the possession of the deceased but not found after he died. The deceased had made a will in 2003, a copy of which was found among his papers. His children sought a grant of representation on intestacy.
A nephew of the deceased objected to a grant on intestacy. He lodged a caveat on the grounds that the deceased had left a copy of the 2003 will, of which the original was missing. Under the terms of the copy will the nephew’s father was appointed as executor of the deceased’s estate and part of the estate was left to the nephew.
The circumstances raised the presumption of revocation which the nephew was required to disprove with evidence. However he failed to do so. The court said that between the making of the original 2003 will and his death, there were a number of circumstances as shown on the evidence which established that the deceased had revoked his original 2003 will by destroying it.9
If you are in a similar situation of a lost original will seek the services of an experienced lawyer in probate matters, wills and estates for assistance. To find someone you can search the database of lawyers by area of law and location on the site of the Law Society in your state or territory. Or contact them directly for referrals. Another place to look is on the site of the Society of Trust and Estate Practitioners (STEP) here.
Finally store your will in a safe place, and let your executors know where it is.
In Tasmania only a photocopy of the deceased’s will could be found. The executor applied to the Tasmanian Supreme Court to prove the deceased’s will by the production of a photocopy of it. The Court ordered that the will be proved by that photocopy.10
The issue for determination was whether the presumption as to the revocation of the will made by the deceased, because original could not be produced, had been rebutted. After reviewing the applicable legal principles and authorities as summarised in a NSW case4, see above, and examining the evidence, the Court decided that the presumption of revocation had been rebutted.
The executor and the sole beneficiary both gave evidence and a sibling. The deceased had made more than will. Among its reasons the Court found that a will was made on the date submitted and in terms of the photocopy produced, that her intention to revoke previous wills was evidenced by its terms, and the evidence showed that it had been properly executed.
1. Allan v Morrison  AC 604, Welch v Phillips  EngR 1157; (1836) 12 ER 828
2. Cahill v Rhodes  NSWSC 561, Curley v Duff (1985 ) 2 NSWLR 716
3. Re Estate of Hall (deceased)  SASC 95
4. Cahill & Rhodes  NSWSC 561
5. Curley v Duff (1985 ) 2 NSWLR 716
6. Manning  NTSC 21
7. Ponikvar  SASC 95
8. Warren deceased  QSC 101
9. Re Moschoudis  VSC 139.
10. Garland v Dillon  TASSC 111
Updated 8 December 2020
Image: Coat of Arms on the Parkes Courthouse, NSW, B. Stead
© BHS Legal