We have recently received a number of queries where the formal Will of the deceased cannot be located; that is, the original Will is missing or lost. It may be that a copy of the Will has been found but not the original document. The question then is what to do and whether a Grant of Probate can still be made where only a copy of the Will is located.
This article only relates to where there is a copy of a Will which, on its face, looks to have been properly drafted and signed. It does not apply to, say, a document which looks like a copy of a Will but does not appear formally drawn and signed as a Will (for example, it may not appear to have been signed by the deceased in the presence of 2 adult witnesses).
That situation falls under the area of law dealing with informal Wills and is outside the scope of this article.
In the absence of evidence to prove who last held the original Will, then it is assumed that the document was last in the possession of the Will maker. The Will is then presumed to have been revoked by the Will maker unless there is evidence to indicate that the Will maker had not revoked the Will.
There may be evidence that the Will maker believed that the Will was in their home. They had made representations to family and/or friends about the content of the document and those representations aligned with the provisions in a copy of the Will found at the time of death.
This is only an example of what might be sufficient evidence, but each case depends upon its own particular facts.
Where evidence indicates that the Will was held by someone else (not the Will maker), such as a lawyer, then that person will be required to provide evidence about the loss of the original Will.
If there is enough evidence to show that the Will was not revoked, then there is still additional evidence required where it is intended to use a copy of the Will in an application for a Grant of Probate.
This includes the following:
A notice needs to be served on any people who may be adversely affected by the making of the application for a Grant of Probate of the copy of the Will. Alternatively, their consent to the making of the application may be provided.
Adversely affected people include all those named in the copy of the Will and those who would be entitled on an intestacy. That means those people who would have received benefits from the deceased if the deceased had not made a Will. In that situation, the statutory rules under the Succession Act are used for determining the distribution of assets.
The executor, who will be making the application for Grant of Probate of the copy of the Will, is required to give an undertaking to lodge the original Will (or a more authentic copy of it) if it is found.
There is certainly a lot more work to be done by an executor when only a copy of the Will is available. And the evidence to support the application for the Grant of Probate needs to be carefully considered and presented to the Court.
We can assist you in exploring all the evidence and determining if it is sufficient to support the application. We can also assist in preparing the evidence in proper form acceptable to the Court.
For more information or to arrange a consultation with a lawyer, you can call or email us.
This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact E&A Lawyers.
When you meet with our expert lawyers they'll be ready to provide advice.
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