The loss of an original Will can be distressing for families and executors alike. In Victoria, the law provides mechanisms to address situations where an original Will is lost or missing, ensuring the deceased’s wishes can be followed through with wherever possible. This article outlines the steps you can take if the original Will is missing or lost.
Understanding the importance of the original Will
Under Victorian law, the original Will is the primary evidence of a person’s testamentary intentions; that is, what they want to happen with their assets and liabilities after death.
A Will is typically required to apply for a Grant of Probate, which allows the executor to administer the estate. If the original Will cannot be located, the Supreme Court of Victoria makes an automatic presumption that the deceased intentionally revoked it. However, this presumption can be challenged if sufficient evidence exists to show otherwise.
Steps to take when a Will is lost
If you are unable to find the original Will, here are the steps to consider.
Search thoroughly for a lost or missing Will
Before assuming the Will is lost, conduct a thorough search. Check the deceased’s home, safe deposit boxes, and files. Contact their solicitor or trustee company to see if they hold the original.
Often, Wills are stored in secure facilities such as a solicitor’s safe custody or with a bank. If the deceased person’s law firm is no longer operating, you can contact the Law Institute of Victoria who will be able to tell you where that law firm’s deeds are now stored.
If you are seeking a Grant of Probate without the original Will, the Court will require you to have undertaken a thorough search.
Speak to family members and close associates
Sometimes, family members or close friends might have knowledge of the Will’s location or possess a copy of the most recent Will of the deceased.
Obtain a copy of the Will (if available)
If a copy of the original Will exists, it can be useful for reconstructing the deceased’s intentions. Copies may be found with solicitors, accountants, or trusted individuals.
Determine the circumstances of why the Will cannot be found
It is critical to establish whether the Will was lost, destroyed, or misplaced. Evidence of accidental loss, such as a house fire or theft, can support an application to prove a copy of the Will, meaning a copy will be accepted by the Court when applying for a Grant of Probate.
Application for Grant of Probate with a copy of the Will in place of the original
If the original Will cannot be located, you may apply to the Supreme Court of Victoria for a Grant of Probate with a copy or reconstructed Will. The Court requires compelling evidence to satisfy three key criteria.
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Ensuring the original Will was properly executed?
You must prove that the copy is a true representation of the original Will and that it was signed and witnessed according to the formalities required by the Wills Act 1997 (Vic).
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Ensuring the original Will has not been revoked
It must be shown that the deceased did not intentionally revoke the Will by destroying it. Evidence could include testimony from witnesses or proof of accidental loss.
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Ensuring there is no evidence of a later valid Will
The Court must be satisfied that the missing Will was the deceased’s final testamentary document. Evidence may include affidavits from the solicitor who drafted the Will, witnesses who saw the Will, and anyone who can attest to its contents and the circumstances of its loss.
What happens if the application fails?
If the Court is not convinced by the evidence, the deceased’s estate will be distributed according to the rules of intestacy. Under these rules, the estate is divided among the closest relatives, such as a spouse, children, or parents. This can lead to outcomes that may not align with the deceased’s wishes, further emphasising the importance of securing and storing Wills properly.
Preventative measures to avoid missing or lost Wills
To avoid issues with lost or missing Wills, consider the following:
- Store Wills securely with your solicitor, trustee company, or a safe custody service.
- Inform executors and close family members about the Will’s location.
- Regularly review and update the Will to ensure it reflects current intentions and circumstances.
Get help from a probate lawyer
The loss of an original Will presents challenges, but with proper legal guidance, it is possible to navigate the process and protect the deceased’s wishes. If you are dealing with a missing Will, seeking advice from an experienced deceased estates lawyer is crucial to ensuring the estate is administered correctly and fairly.
For assistance with lost Wills or any estate-related matters, contact a member of our team. We are here to help.
Contact David Davis Lawyers
Phone: 03 9014 1299
Email: admin@ddavis.com.au