Following the death of a person in New South Wales, their Executor will generally apply to the Supreme Court to obtain a Grant of Probate of their Will in order to distribute the deceased’s estate in accordance with their testamentary wishes. In order to do so, the Executor is required to file the deceased’s original Will with the Probate application. However, a problem arises if the Executor knows of the existence of the Will because they have a copy of it but can’t locate the original document. In these circumstances uncertainty will exist whether the deceased destroyed the Will in an act of revoking it or if the Will has been merely mislaid.

Locating Missing Wills

An Executor should conduct thorough searches of all likely locations in an attempt to locate the original of the deceased’s missing Will. In the efforts to locate the missing Will, Executors should contact those who may know the whereabouts of the original Will including:

• family members and close friends of the deceased;
• the solicitor who prepared the Will;
• the persons who witnessed the deceased sign the Will;
• any previous solicitor who acted for the deceased;
• the deceased’s accountant and any former accountants;
• the NSW Public Trustee;

The Executor should also meticulously search through the deceased’s personal papers, belongings and home and check any safety deposit boxes held in the deceased’s name or jointly with other family members. Consideration should also be given to advertise in a local newspaper for information on the location of the missing Will.

Can’t find original Will?

If an Executor has pursued all possible avenues and still can’t locate the original Will, there is a rebuttable presumption in law that the deceased destroyed the Will. An Executor who seeks to rebut this presumption may be able to apply to the Supreme Court to obtain Probate on a copy of the Will. However, in order to obtain a Grant of Probate they will need to prove to the Court that the deceased did not intend to revoke their Will. Such evidence can include conversations the deceased may have had in relation to his or her Will but could also include evidence as to there being no substantial change of circumstances since the Will was originally made that may have led to an expectation that the deceased may have changed their Will.

Application for Probate on a Copy of a Will

If an Executor intends to apply for Probate using a copy of the deceased’s Will they’re required to file an affidavit with their application that addresses all of the following matters:

• where the Executor obtained the copy of the Will;
• the extent of any searches they’ve made for the original Will;
• the Executor’s opinion as to why the Will is missing;
• the name and details of the person who prepared the Will;
• information on the signing of the Will;
• the legibility and accuracy of the copy of the Will; and
• any evidence that confirms the deceased’s testamentary intentions as contained in the copy of the Will.

The affidavit of Executor will also need to set out who would be entitled to a share of the deceased’s estate under intestacy (i.e. if there was no Will). If the people that would be entitled under intestacy are different from the beneficiaries under the copy of the Will, then it will be necessary to either obtain the consents of those persons who will be adversely affected if a grant of Probate is made in relation to the copy of the Will, or to prove that they have at least been served with notice of the Executor’s application.

An affidavit will also likely be required to be provided by the solicitor who prepared the Will detailing the usual practices of the solicitor once a Will had been signed (for example, whether they typically kept the original on file or gave it to the client). If the Will was last in the solicitor’s possession, then the solicitor must also detail the searches their firm has undertaken to find the missing Will. Generally, there will be no presumption that the deceased intended to revoke the Will if the original Will was misplaced while it was in the solicitor’s possession.

If the Supreme Court issues an order granting Probate on a copy of the Will, it will be a limited grant. Although in most cases the original Will is unlikely to be found this means that the grant is limited until the original Will is found and an application for a grant of probate of the original Will is made.

If you or someone you know would like further information about applying for Probate using a copy of a Will or wish to discuss estate application matter, please contact Lisa Delalis or John Bateman on 02 4731 5899 or email willsestates@batemanbattersby.com.au.