Wills are lost or misplaced far more often than many people realise, and it can cause great trouble and confusion. The best remedy is, of course, prevention. Ask family members where to locate important documents like Wills. Keep your Will in a safe place 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 had died without a Will, but these may require the permission of the court.

Search and search again

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.

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 revoked the Will by destroying it. The estate will be distributed according to the rules of intestacy.

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 consent,
  • then the copy may be admitted for 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 objects. These problems may sometimes be addressed through negotiation.

If you are confronted with the problem of a lost Will – 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 attorneys at Owen Hodge Lawyers are here to help. Please call us to schedule a consultation at 1800 770 780.