A lost will – when the original can’t be found.

Sometimes an original will becomes lost and cannot be located, despite best intentions for safekeeping. 

After thorough searches what else can be done? Some additional enquiries which may be made in finding a missing will are discussed here. If a deceased person has not left a valid will or in some circumstances a copy of it acceptable to the court, the intestacy rules apply. 

It will depend on the particular circumstances, whether or not there is a testamentary document/s or a copy of the original, among other matters.

Probate court’s powers to dispense with formal requirements

Wills and succession legislation in each state and territory contain provisions permitting Probate Courts to dispense with the formal requirements to make a valid will in some circumstances.  These are known as the ‘dispensing provisions‘.   One example is found in section 8 of the Succession Act 2006 (NSW).  Another from South Australia section 12 of the Wills Act 1936 (SA).

Lost or missing original will – seeking probate of the copy

In one South Australian case the original will could not be found but copies of it existed.

Following execution of a document alleged to be her last will in her solicitor’s office, the solicitor gave the deceased the original and a copy.  Another copy was retained by the solicitor.  One of the named executor’s applied for a grant of probate using the solicitor’s copy of the will document, which is permitted under Rule 68 of the Probate Rules in South Australia.

In conclusion, the Court was satisfied that the copy of the will was a complete and accurate copy, that the will was executed properly, that the original existed, and it had revoked any previous wills. The Court was also satisfied that anyone affected by the application for a grant of probate had been informed and had consented to it.

Factors for consideration

Over time courts have laid down various factors in deciding cases on problems with missing, lost or misplaced wills.  In certain circumstances a Court will recognise a missing original will and admit it to probate, however it has to be satisfied about a number of issues.

Many issues to be satisfied

Among a long list of issues is whether a document actually existed.  If it did what is the evidence of its validity?  Especially the evidence of the attesting witnesses.

• Is the will genuinely missing?  Or was it destroyed by the deceased in an act of  revocation, that is to cancel it?
• What were the circumstances in which the alleged lost document was made? 
• Was it made freely?  Intended to be the will maker’s final say on the disposal of their property?  Their “last will”? 
• Had the deceased instructed a solicitor or trustee company to prepare the document?

Matters the Court considers when assessing a copy of a will

In the above South Australian case the Court said that missing wills have been the subject of considerable judicial commentary.  The Court summarised the matters for consideration in the admission of a copy of a missing will to probate as follows:

• that the original will existed;
• that the original will was validly executed; or if the original will does not fulfil the formalities required by legislation;
• it satisfies the legislative requirements allowing it as an informal will to be admitted to probate;
• that there is evidence of the terms of the original will;
• that the copy of the will is an accurate and complete copy of the original will;
• that thorough searches have been conducted to find the original,including publishing advertisements regarding the missing original will;
• that the original will revoked all pre-existing wills;
• the circumstances surrounding the absence of the original will;
• that all persons affected by the application, having legal capacity, know about it and have consented to it;
• that the presumption the will might have been revoked does not arise.

Destruction of a will

The Court said that the destruction of a will by someone other than the testator without the testator’s knowledge and consent does not revoke (cancel) it.

With the problem of lost or missing wills seemingly more frequent, this topic on the prospects of using a copy of an original will in a probate application has been expanded here.

A lost will is distressing, the problem only evident following death when a will comes into effect.  Keeping an original will safe and secure is important, especially where there is the possibility that it maybe tampered with or destroyed by others (see storing a will). As a practical matter, for when it is required, it is important to let executors, or trusted family or friend of its whereabouts.

Re Estate of Hall (Deceased) [2011] SASC 117

B Stead
BHS Legal
Last updated July 2023.