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Home | Blog | Can Probate be Granted of a copy of a Will if the Original is lost?

Probate of a copy of a Will

The simple answer is Yes. Unfortunately items can get misplaced or lost; this can even include an original Will. A recent decision about Probate of a copy of a Will is In the Will of Leonie Lyle Warren deceased [2014] QSC 101.

The Facts:

  • On 1 November 1999 the deceased made a duly executed and witnessed Will that was held in the possession of her solicitors, Biggs & Biggs.
  • On 1 August 2008, Biggs & Biggs merged with Thynne & Macartney solicitors. Until then the Will had been held in Biggs & Biggs safe custody and after the merger in Thynne & McCartney’s safe custody.
  • In 2011 as Attorney for the deceased one of the sons engaged Creevey Russell Lawyers to act on her behalf and authorised Thynne & Macartney to transfer the safe custody documents, including the Will, to Creevey Russell Lawyers.

The documents were sent and received the following day. Unfortunately the Will was subsequently lost. A photocopy of the Will was located in documents described as “the deceased’s papers.” This application was brought by the deceased’s two sons.

The Decision:

In deciding the matter his honour, Justice Lyons referred to the five matters which need to be established in relation to an Application for Probate of a copy of a Will.

  1. Whether there was a Will;
  2. That the document revoked all previous Wills;
  3. The presumption that, when a Will has not been produced it has been destroyed, and thus revoked, must be overcome;
  4. The terms of the Will; and
  5. The Will was duly executed.

There was a Will

Justice Lyons determined that because of the apparent photocopy of the Will, it was clear that there was a Will which the deceased duly executed. This was also supported by the evidence of the Solicitor who witnessed the Will. The Will revoked all previous Wills.

In his honour’s view the presumption that when a Will has not been produced it has been destroyed and thus revoked was more adequately stated as “The law presumes that, if a Will is last traced to the possession of the testator cannot be found, it was destroyed by the testator with the intention of destroying it.“

Will was not intentionally destroyed

In this case, the Will was last traced to the possession of Creevey Russell Lawyers, therefore his honour did not consider that the presumption arose. In any event, his Honour concluded that the absence of the original Will was accounted by it being lost by Creevey Russell Lawyers, which would be sufficient to rebut the presumption.

The Will was also in existence in June 2011, subsequent to the time when the deceased’s son commenced to act as her Attorney. His honour was also of the opinion that the fact that the Will was found among the deceased’s papers and in an envelope identified as a copy of the deceased’s last Will also supported the conclusion that the Will was not revoked.

Probate was granted

His honour concluded that this was an appropriate case to grant probate of a photocopy of a Will, until the original Will or more authenticated evidence be brought into and left in the Registry.

This case emphasises the importance of keeping your original Will in a safe place and informing your Executors of the whereabouts of your Original Will.

About the Author

Jenna Hutchinson is Turner Freeman Lawyers’ Wills & Estates associate who specialises in:

Preparing Wills
Estate Administration
Powers of Attorney and AHD
Estate Litigation / Will Disputes.

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