After someone passes, generally the first thing loved ones do is search for the Will. If you can’t locate the original Will, it is not the end of the world. However, it does mean that the administration of the estate will become more complicated, time consuming and unfortunately, more expensive.
Generally, where a deceased person has assets over the value of around $50,000, the executor will need to apply for a Grant of Probate.
A Grant of Probate is an order of the Court on the last Will of the deceased issued to the executor of the estate.
Once the executor has been granted Probate, the executor is entitled to deal with the world at large and commence administering the estate including dealing with asset holders and calling in funds of the estate.
Where the original Will has been located, the process of obtaining a Grant of Probate is relatively straightforward. After mandatory advertising has been published, an application can be made to the Registrar of the Supreme Court of Queensland. If your application has been prepared properly, the Registrar will generally issue the Grant of Probate to the executor within 5 – 7 weeks.
However, the process is different where the original Will cannot be located. In this instance, the application can no longer be dealt with by the Registrar of the Supreme Court of Queensland. The application must be heard by a judge of the Supreme Court of Queensland.
What needs to be shown to the Court to obtain a Grant of Probate when the original Will cannot be located?
When the original Will cannot be located, the law presumes that the deceased destroyed their Will as they no longer wanted their estate to be dealt with under the terms set out.
When the original Will is missing, the following matters must be demonstrated to the Court:
- that a Will actually existed;
- that the Will revoked all previous Wills of the deceased;
- when a Will cannot be produced to the Court, the law presumes that the deceased destroyed the Will – accordingly, the Court must be satisfied that the Will was not destroyed;
- there must be evidence of the terms of the Will; and
- there must be evidence of due execution of the Will, or that the deceased intended the document to constitute their Will.
In most circumstances where a copy of the Will can be located, items 1, 2, 4 and 5 can easily be shown to the judge.
The critical aspect when the original Will cannot be located, is point 3 – demonstrating to the Court that the deceased did not destroy their original Will.
Generally speaking, it is this aspect that increases the cost of obtaining probate of a copy of a Will. As thorough searches need to take place – sometimes with third parties, other law practices, the Queensland Law Society etc and evidence needs to be gathered in relation to these searches.
In my view, if an application fails, it will be largely due to insufficient evidence in relation to this aspect of the application.
Example of an application of a copy of a Will
I recently acted for a client in an application for probate, where only a copy of the Will could be located.
In summary, the facts of the matter were as follows:
- The deceased died on 7 August 2021. Her last Will was dated 14 June 1990. Only a copy of the Will could be located.
- The executor of the deceased’s estate (her son) understood from conversations with his late father (the deceased’s husband) that the Wills were prepared by a former practice that no longer existed.
- Extensive searches were undertaken of the deceased’s belongings, family members documents and document folders previously belonging to the deceased and her late husband.
- There was clear evidence to support that the deceased and her late husband told their son that the original Wills were held by the solicitor that prepared them some 30 years ago and that this was the last place the original Wills could be located to. The deceased and her late husband had never requested the original Wills to be released to them.
You can read the judgement here.
On the application to the Court, we submitted that on the basis that the deceased and her late husband had never obtained the original Wills, and all evidence supported that the Wills were retained by the former practice, the presumption that the Will was destroyed by the deceased was so slight as to be virtually non-existent.
More probable than not, the Will was lost by the former practice without any act or intervention of the deceased.
The application for probate of a copy of the Will was successful.
What to do if you have lost an original Will
If you are an executor of an estate, and the original Will cannot be located, I recommend that you speak with a solicitor in relation to your options.
The nature and complexity of the application will depend on the circumstances and how and where the original Will was misplaced.
Contact our team today to discuss your legal needs.
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