What to do if an original Will cannot be found

Why is it necessary to keep my original Will safe?

Keeping your original signed Will in a safe place is important as it enables the Court to grant probate in your estate after you die. This is the process whereby the Court validates a Will as the true and last testament of the deceased wishes, which enables the process of releasing assets to begin. Therefore, it is important that you and your loved ones are aware of the whereabouts of your original Will at all times to ensure that it is easily accessible in the event of the testator’s passing. 

When an original Will cannot be found and its last known location was with the deceased, there exists a legal principle called the ‘presumption of revocation’, which presumes that the Will has been destroyed by the willmaker themselves with an intention to revoke its contents. For an executor to administer the Estate according to this Will, they must rebut the presumption and establish that the deceased did not revoke their Will. They must establish that although only a copy of a Will can be located, the deceased intended this to be their final Will. 

Additionally, it is important to ensure that your original Will is free of alterations: be careful not to remove the staples, not to attach anything to the document (even if it is with a paperclip!), and not to alter the appearance of the document in any way. These alterations may result in the validity and authenticity of your Will being brought into question. Whilst this may seem extreme, these measures are in place to protect the deceased’s true wishes. There is no way to check the authenticity of a copy of a Will, and a court cannot go back and ask you after you die! 

Where should I safely store my Will?

Hume Taylor and Co offer storage of Wills and other original documents at no cost in our safe and secure facilities. Due to our cataloguing system, fireproof storage and security system this is a more favourable option than storing them at home. 

However, if you wish to keep them at home a safety deposit box is the best way to ensure that your documents are as secure as possible. Although, it is important that others are aware of the whereabouts of your Will in your home and any passcodes to access it. 

What to do if your Will has been lost 

If you have:

  1. Thoroughly searched through your home and any other place it may be, and
  2. Contacted the solicitors involved in the preparation of the Will to check if they are storing the original copy

and you still cannot find the Will, you should contact a solicitor to prepare a new one. Long term, this saves money, stress and time delays in the event of your death by avoiding the risks and legal fees of finalising an Estate that does not have an original Will.  Hume Taylor & Co have a team of experienced solicitors who can help with the preparation of a new Will if you cannot locate the original copy of your current one. 

What to do if you are the executor of an Estate and the Will is lost

If you are the executor of an Estate and do not know where the original Will of the deceased person is, you should contact:

  • the solicitor who drafted the will (if applicable);
  • any of the testator’s former solicitors;
  • any Bank’s safe custody that the executor understands the deceased may have banked at during their lifetime;
  • the deceased’s accountant or former accountant, and;
  • the Public Trustee of South Australia.

Additionally, the executor should conduct a thorough search of the testator’s home, including all personal documents and papers and contact a lawyer as soon as possible. 

If all of these avenues have been pursued to no avail, an application to prove a copy of the will by rebutting the presumption of revocation by destruction may be made under Rule 69 of the Probate Rules 2015 using a copy of the Will. 

The Probate Rules 2015 prescribe that the following evidence must be provided: 

  1. Circumstances surrounding how the will was lost;
  2. Information on who prepared the will;
  3. Confirmation that the will was properly executed pursuant to the Probate Rules;
  4. Details as to who previously had possession of the original will;
  5. Evidence (if held) that the will existed after the death of the deceased;
  6. Evidence to rebut the court’s presumption that the deceased intended to revoke the will;
  7. Evidence of the accuracy of the copy of the will held;
  8. Evidence of the investigations made to locate the original will (as mentioned above); and
  9. Any evidence as to the deceased’s words or actions that may have shown testamentary intentions, confirming the dispositions in the copy will.

Such evidence is to be provided to the Supreme Court of South Australia with an affidavit paired with the application to obtain a Grant of Probate for the copy of the Will, and a copy of the Will itself. 

If you are named executor in a Will and have been unable to locate the original Will following a thorough search, Hume Taylor and Co can assist you with the process of obtaining a Grant of Probate of a copy will.

How can Hume Taylor and Co help?

If you need a new Will or other estate planning documents drawn up and stored in our safe and secure facilities, or guidance as to a lost Will, we have a team of experienced solicitors who can assist you.

Contact our Adelaide office on (08) 8223 3199, our Millicent office on (08) 8733 2500 or our Whyalla office on (08) 8645 7666 to book an appointment to see one of our firm’s estate planning or estate administration lawyers today. 

This blog was written by Partner Samuel Partridge, with assistance from Clerk and Law Student Dwayne Freeman. 

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