You can’t find the Will?!?

Occasionally upon the death of a person, particularly the sudden death of a person, the location of their original Will may be unknown. There are practical steps to be taken such as looking through the person’s files or paperwork, as well as enquiring with local law firms, or even advertising for the lost Will through the law society’s Proctor publication. In most cases the Will is located.

However, what can be done in cases where you know the Deceased made a Will, you may even have a copy of it, but the original cannot be located? Can you obtain Probate if the original is lost? Yes you can, provided that certain requirements are met.

When seeking Probate of a lost Will there are five matters to be established which derive from the case of Curley v Duff (1985) 2 NSWLR 716. These matters are –

It must be established that there actually was a Will;
It must be shown that the Will revoked all previous Wills;
It must overcome a presumption that the Will was destroyed by the testator in an act of revocation;
The terms of the Will must be evidenced; and
There must be evidence that it was executed.

In circumstances where a copy of the Will is located however the original cannot be then usually all of the above can easily be satisfied with the exception of the 3^rd element-

It must overcome a presumption that the Will was destroyed by the testator in an act of revocation;

This presumption was stated in the case of Cahill v Rhodes [2002] NSWSC 561 where it was said that if any Will traced to the possession of the deceased it not forthcoming on his death, it is presumed to have been destroyed by himself with an intention of revoking it, unless there is sufficient evidence to rebut any such presumption. It is clear, therefore, that the presumption does not apply in the particular fact scenario where the will was last known to be in the possession of a person other than the deceased.

Therefor the presumption is overcome if –

The Original Will was not in the possession of the Testator; or
There is sufficient evidence to rebut any such presumption.

In respect of what is sufficient evidence to rebut the presumption that the testator destroyed the Will the case of Sugden v Lord St Leonards (supra) provides authority that where the Will makes a careful, and complete, disposition of the testator’s property, and there are no other circumstances to point to a probable destruction, by the testator, the presumption is so slight that it may be said not to exist.

Miller Sockhill Lawyers have been handling complicated Wills and Estates matters on the Sunshine Coast and throughout Australia for decades. Please contact our friendly team on 07 5444 4750 should you require any assistance in this area.

Anthony Miller, Principal Lawyer

22nd April 2024

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