Not all is lost if you can’t find the original will
Recently, I have received a number of enquiries where a deceased’s original will cannot be found. When an original will cannot be found, a grant of probate can still be obtained on a copy of a lost will, however, the process is different to where there is an original will.
How can I obtain a grant of probate if the original will is lost?
Where there is an original will, probate is obtained by making an application to the Registrar of the Supreme Court of Queensland. Certain forms are completed, and submitted to the Registrar. Once the Registrar has reviewed the documentation, a grant of probate is usually admitted.
Where the original will cannot be found, an application must be made to the Supreme Court of Queensland, which is heard by a judge. The forms are different to those used where an original will can be located and also the information that must be provided to the Court is different.
What information do I need to give the court to obtain probate of a lost will?
The information that must be provided to the Court must establish five matters:
- that there actually was a will;
- that the will revoked all previous wills;
- the presumption that when a will is not produced it has been destroyed must be overcome;
- there must be evidence of its terms; and
- there must be either evidence of due execution or that the deceased person intended the document to constitute his or her will.
What things can I do myself to try and minimise the costs of an application for probate of a lost will?
It is no secret that the cost of obtaining a grant of probate of a lost will exceeds the cost of obtaining a grant where there is an original will.
If you are wishing to engage a solicitor to assist you with the application for probate of a lost will, I recommend that you do the following things which may reduce some of the cost involved in the process:
- do a thorough search of the deceased’s home;
- contact all financial advisors, accountants, banks and solicitors associated to the deceased to ensure that the will is not in their possession. If the will is not in their possession, ask for written confirmation that they do not hold the original document;
- if a law firm that prepared the will is no longer in existence, contact the Queensland Law Society for guidance as to where that firm’s safe custody documents were relocated;
- if possible, determine where the original will was last held, or where it may have been lost;
- try to find the individuals who witnessed the will and obtain their contact details; and
- liaise with any family members and/or beneficiaries in the will to see if they may have information as to the whereabouts of the original will.
If you require assistance with an application for probate of a lost will, please do not hesitate to contact me.