Wills are lost or misplaced far more often than many people realise, and it can cause great trouble and confusion for estate planning. Panic can often ensue, so it’s no surprise that we are often being asked, if a will is lost what happens?
The best remedy is, of course, prevention. Ask family members where to locate important documents like Wills. Keep your Will in a safe deposit box and tell your nearest and dearest where to find it.
The second-best remedy is a diligent search. Should that fail, there may still be ways to prevent an estate from being distributed as if the deceased person had died without a Will, but these may require the permission of the court.
In this article, we’re going to suggest ways of how to find a lost Will in Australia and, if all else fails, if a Will is lost, what happens.
How to find a lost Will in Australia
Search and search again
The most obvious answer to the issue of how to find a lost Will in Australia is to search – long and hard. Look in all the usual hiding places – desk drawers, filing cabinets, the tops of bookcases and anywhere else the deceased was known to put things for safekeeping. Check the freezer – as some experts have noted, this is often the poor man’s fireproof storage box. Is there an offsite storage facility?
If the Will was prepared by a solicitor, the solicitor’s office may have the original or an executed copy. Ask other relatives. Run advertisements in the local newspaper.
If a Will is Lost, What Happens?
The presumption of revocation
If the search turns up nothing – not even a copy – and the Will was last believed to be in the deceased’s possession, the law will presume that the deceased intentionally revoked the Will by destroying it. The estate will be distributed according to the rules of intestacy. Contesting a Will in this situation becomes difficult.
If a properly executed and witnessed copy of the Will exists, a problem still exists because deliberate destruction of the original Will would have revoked it, notwithstanding the survival of a copy. Nonetheless, if the surrounding evidence is sufficiently persuasive that:
- there was an original Will;
- a thorough search was conducted;
- specific circumstances likely caused the original to be misplaced or destroyed by accident; and
- all persons who would be adversely affected by distribution under the Will rather than under the rules of intestacy, then the copy may be admissible to obtain a grant of probate.
What circumstances would support the acceptance of a copy of a Will?
The circumstances that will support the admission of a copy of the Will are very fact-specific. If the Will was known to be in the possession of the deceased at a time when the deceased’s house was destroyed by fire, for example, an executed copy might be sufficient. The same might be true if the deceased had to leave the home because of ill health, the home was cleared out and many possessions were lost.
A similar catastrophe at a solicitor’s office when the solicitor was known to have the original Will might also be sufficient.
The situation can become more difficult when the copy is unsigned or an individual who would inherit under intestate provisions, but not under the unsigned or copy Will. These problems may sometimes be addressed through negotiation.
If you have a deceased Will enquiry – either a Will that cannot be located despite diligent searching or the situation that arises when an original document cannot be found, but an executed copy has been located – the Will and Estate lawyers at Owen Hodge Lawyers are here to help. Please contact us to schedule a consultation for expert legal advice at 1800 770 780.