Wills are lost or misplaced far more often than many people realise, which can cause great trouble and confusion for estate planning. Panic will often ensue, so it’s no surprise that we are often being asked, what happens if a will is lost? The best remedy is, of course, prevention, i.e. keeping your will in a safe place. A diligent search surfaces many lost wills, but should that fail, there may still be ways to prevent thean estate from being distributed as though no will was ever made. However, these may require the permission of the court and the help of an experienced wills and estate lawyer. In this article, we’re going to suggest ways of how to find a lost will in Australia and, if all else fails, what happens if a will is lost.
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. Start by asking family members where to locate important documents. Look in all the usual hiding places – desk drawers, filing cabinets, safe deposit boxes, the tops of bookcases and anywhere else the deceased person was known to put things for safekeeping. Check the freezer – as some experts have noted, this is often used as a fireproof storage box. You can even check any offsite storage facilities. If the will was prepared by a solicitor, the solicitor’s office may have the original or an executed copy. Alternatively you could ask other relatives or run advertisements in the local newspaper.
What happens if a will is lost?
The presumption of revocation of a lost will in Australia
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 and. contesting a will in this situation becomes difficult. If a properly executed and witnessed copy of the will exists, this will still cause a problem. This is because deliberate destruction of the original will would have revoked it, even if a copy survives. Nonetheless, if the surrounding evidence is sufficiently persuasive, the copy of the the will may be admissible to obtain a grant of probate if:
- There was an original will.;
- A thorough search was conducted.;
- Specific circumstances likely caused the original to be misplaced or destroyed by accident.
- All persons were adversely affected by distribution under the the rules of intestacy.
What circumstances would support the acceptance of a copy of a will?
The circumstances that 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, an executed copy might be sufficient. The same might be true if the deceased had to leave the home because of ill health and the home was cleared out, losing many possessions in the process. 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 if the copy is unsigned, or an individual is inheriting under the intestate provisions, but not under the unsigned or copied will. However, these problems may sometimes be addressed through negotiation. Read more: Dealing with deceased estates
Owen Hodge is here to help
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 wills and Eestate lawyers at Owen Hodge Lawyers are here to help. Please contact us to schedule a consultation for expert legal advice at 1800 770 780.
What happens if a will is lost: FAQs
How do I get the original will from the solicitor?
If you’re unsure whether you can access the original copy of a will from your solicitor, the best course of action is to speak to your wills and estate lawyer and discuss your situation.
How long is a will valid for?
Wills do not have an expiry date. However, a new will can revoke all previous wills. It’s recommended to revise your will annually in case of any changes, such as new properties for marriages.
Can I get a copy of an old will?
You can contact your probate lawyer to request a formal copy of the will and any previous computation that coincides with the will.
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