Recently, I read about an application which was made to the Court to allow a copy of a Will to be used to obtain a Grant of Probate. Usually when completing an application for Grant of Probate, the original Will of the deceased must be provided to the Court. This is why I always ensure that after preparing Wills for clients, I keep the originals in safe custody at my office, to minimise the risk of these important documents being lost or destroyed.
In this case, the sister of the deceased, who was appointed in the Will as the Executor of the estate, went to great efforts to try to locate the original Will. She carried out a comprehensive search and publicly advertised that the Will was missing, and requested information about its whereabouts. Unfortunately, her search was unsuccessful so she made an application to the Court to use the copy of the Will in her application for Grant of Probate.
In Queensland, there is no provision in the legislation for what to do if only a copy of a Will is available. The test to use for deciding whether or not the copy can be used in applying for a Grant of Probate derives from cases and is as follows:
- Was there actually a Will or a document which evidenced the deceased’s intentions?
- Did the Will revoke all previous Wills?
- Is there evidence to suggest that the Will has not been destroyed?
- Is there evidence of the terms of the Will?
- Is there evidence that the Will was executed? If not, is there other evidence to suggest that the deceased intended the document to constitute their Will?
In determining the orders to be made, the Chief Justice considered the following:
- The copy demonstrated that at its date, there was an original Will;
- The document specifically provided for the revocation of all prior Wills;
- The absence of the original Will did not necessarily mean that it had been destroyed as there was no evidence that the deceased left her Will with anyone else, so the Court inferred that it was likely she retained it herself;
- The deceased suffered from dementia towards the end of her life, which supported an inference that she probably mislaid or lost the Will. In any event, her dementia meant that she likely would not have had the capacity to make another Will;
- There were no changes in the circumstances which would have affected her likely intentions when she made her Will, so it is unlikely she would have wanted to revoke or amend it;
- The terms of the Will evidenced by the copy were clear and comprehensive; and
- The copy showed that the Will was properly executed.
What should I do next if you only have a copy of a Will?
If you are listed as the Executor of a friend or family member’s Will, and only a copy of the Will can be found after the person passes away, you should obtain the advice of an experienced estate planning lawyer. Please do not hesitate to contact me should you require assistance.
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