One of the most common enquiries I receive is in relation to a lost Will.
If an application for probate has to be made in an estate, having the original Will is important.
Where the original Will is available, the application for probate will generally be considered by the Supreme Court Probate Registrar. The process is relatively straight forward and probate is issued within around 6 – 7 weeks after the application is filed.
Where the original Will is lost, the application for probate cannot be considered by the Supreme Court Probate Registrar. The application must be considered by a judge.
Where an application for probate of a copy of the Will has to be made, the process is different and often, more expensive.
What steps must you take when you cannot locate an original Will?
Before an application for probate of a copy of the Will can be made, it is important that a thorough search has taken place for the original Will.
It is necessary to produce evidence to the Court as to your searches.
There are some universal places that should be searched and enquiries that should be made which include:
- If the Will was prepared by a solicitor, an enquiry should be directed to that solicitor to see if the original Will is held in their safe custody facility. If not, it is important that you obtain a letter from the solicitor confirming he or she does not hold the original Will.
- If you are unable to locate or contact the solicitor who prepared the Will, an enquiry should be directed to the Queensland Law Society to see if that solicitor is still in practice or has changed their contact details.
- A solicitor’s safe custody facility is registered with the Queensland Law Society. Therefore, if you are aware that a solicitor did in fact hold the original Will, but you are unable to locate the firm, the Queensland Law Society will be able to advise you where that solicitor’s safe custody facility can be located.
- Any safe custody box held by the deceased’s financial institution. If the deceased did not have a safe custody box with their bank, then you should obtain a letter from the bank confirming this.
- The safe custody facility of the deceased’s financial planner or accountant. If either do not hold the original Will, you should obtain a letter from both the financial planner and accountant confirming this.
- If the witnesses to the Will are able to be contacted, an enquiry should be made of them as to whether they are aware of where the original Will is.
- All family members and beneficiaries should be contacted and asked if they are aware of where the original Will is.
It is important that you seek written confirmation from each enquiry you make as this will assist your solicitor to prepare your application material.
By carrying out these searches yourself, it may reduce the professional costs you will incur in the overall application process.
What information must be produced to the Court in application for a copy of a Will?
In making an application for a copy of a Will, five matters must be established to the Court:
- that a Will actually existed;
- that the Will revoked all previous Wills;
- when a Will cannot be produced there is a presumption that it has been destroyed – this presumption must be overcome;
- there must be evidence of the terms of the Will; and
- there must be either evidence of due execution or that the deceased person intended the document to constitute his or her Will.
There is generally a need for more than one person to file an affidavit in an application for probate of a copy of a Will.
In circumstances where the original Will may have been lost by a solicitor or family member who is not the executor, then it will be necessary for the solicitor or family member to file an affidavit in the application.
Where it can easily be identified where the Will was lost, then it may be possible to make an application to the Court to be heard on the papers. This means that the Court will receive and review the material without an oral hearing. Whether this is an option will depend on the individual circumstances.
What happens once the application has been made to the Court and heard by a judge?
If the judge is satisfied as the above five matters, he or she will make an order that probate of a copy of the Will be made to the executor.
This order must be provided to the Supreme Court Probate Registrar to receive the grant of probate.
What should you do if you have a missing Will?
If you are in circumstances where an original Will cannot be located and you need to apply for a grant of probate, please do not hesitate to contact us.
A missing Will can cause many issues for many in an already tramatic period. Be sure to speak to our team today.
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