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Missing or lost original will – can a copy will be used?

In Victoria a copy will was not admitted to probate

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.  The original of this will was missing. Under the terms of the copy will the nephew’s father was appointed executor of the deceased’s estate. And part of the estate had been 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. 

Tasmania

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 it could be presumed that the deceased had revoked their will, because the original could not be produced.  Or whether this presumption on the evidence 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, as well as a sibling of the deceased.  The evidence revealed that the deceased had made more than will.  Nevertheless the Court found that a will was made on the date submitted and in the terms of the produced photocopy produced.  It was held that her intention to revoke previous wills was evidenced by the terms in the document.  Further, the evidence showed that it had been properly executed.

 

1.  Allan v Morrison [1900] AC 604, Welch v Phillips [1836] EngR 1157; (1836) 12 ER 828
2.  Cahill v Rhodes [2002] NSWSC 561, Curley v Duff (1985 ) 2 NSWLR 716
3.  Re Estate of Hall (deceased) [2016] SASC 95
4.  Cahill & Rhodes [2002] NSWSC 561
5.  Curley v Duff (1985 ) 2 NSWLR 716
6.  Manning [2015] NTSC 21
7.  Ponikvar [2016] SASC 95
8.  Warren deceased [2014] QSC 101
9.  Re Moschoudis [2016] VSC 139.
10. Garland v Dillon
[2005] TASSC 111

 


B Stead
BHS Legal
Updated 8 December 2020

 

 

Important notice: This article is intended for general interest and information only. It contains general information and is not specific to anyone’s personal circumstances. It is not legal advice nor should it be used as such. Always consult a legal practitioner for specialist legal advice specific to your needs and circumstances and rely upon that. While every effort is made to ensure accuracy at the time of writing applicable laws may change.

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Coat of Arms on the Parkes Courthouse, NSW,  B. Stead
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