Where there is no Will, is there a way? Admitting a will to probate where the original is lost

Where there is no Will, is there a way?  Admitting a will to probate where the original is lost
Posted on 10 Aug 2022

For a Will to be admitted into probate in Queensland, the original signed Will must be deposited with the Supreme Court.  But what happens if the original Will cannot be found?  The recent Supreme Court decision In the Will of Nina Elizabeth Mary Greer [2022] QSC 136 provides a helpful reminder of the hurdles to be overcome where a Will has been lost. 

In this case, the deceased signed a Will by which she:

  1. revoked all previous Wills and testamentary dispositions (meaning that any previous Wills were cancelled and superseded by the new Will);
  2. appointed her daughter (the applicant for probate of the Will) as the executor of her estate (being the person in charge of administering her Will); and
  3. gifted all her assets to her children in equal shares. 

 

The Will met the relevant formal requirements to be admitted to probate, but with one exception – the original could not be found.  The deceased had retained a copy of the Will, which her daughter submitted to the Court for probate in lieu of the original Will. 

The Will was prepared by a solicitor and the original was held in safe custody at the law firm of the solicitor. However, before the death of the deceased, the law firm ceased to trade and the original Will could not be located.  

As set out in this case, for a copy of a Will to be admitted to probate (where the original cannot be found), the following matters must be satisfied:

  1. a valid Will had been made; 
  2. the Will revokes all previous Wills;
  3. the entire document is available in copy form (i.e. no missing pages or parts);
  4. the Will was properly signed and witnessed by two witnesses; and
  5. if the original Will is last traced to having been in the possession of the deceased, there is evidence to overcome the presumption that the deceased has destroyed the original Will, with the intention of revoking it. 

 

The first four matters were satisfied without difficulties.  The final matter, however, required more detailed consideration by the Court. Importantly, the daughter was able to show that:

  1. the deceased did not have the original Will (the evidence was that she told her children she had a copy and the law firm that prepared the Will held the original); and 
  2. her solicitors made substantial enquiries to try and locate the original Will, including attempting to trace the whereabouts of the previous law firm’s safe custody through the Queensland Law Society, advertising the missing Will, searching through the deceased and all her children’s records.

 

Accordingly, the Court was satisfied that the copy of the Will could be admitted to probate and the estate could be administered in accordance with the terms of that Will. 

If you require assistance with proving a Will or challenging the validity of a Will, please do not hesitate to contact the team at Cronin Miller to help with all your estates litigation needs. 

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