Recently, our firm assisted in a matter where we could not locate the original Will of our client’s late father. Our client could only find a copy of the signed Will.
So, what happens when you cannot find the original Will?
In Queensland, a copy of a Will may be admitted to probate in appropriate circumstances. However, the Court may require additional evidence and a Court Order before the estate can proceed.
Can a copy of a Will be used for probate in Queensland?
In our client’s matter, the Court admitted the copy of the Will to Probate. This allowed the administration of the estate to proceed.
However, the process required significant research, evidence and a Court Order.
The Court needs to determine whether the copy accurately reflects the deceased person’s final testamentary intentions. It must also consider why the original Will cannot be produced.
What does the Court need to be satisfied about?
The Court must be satisfied that:
- the deceased made a Will that adopted or purported to embody their testamentary intentions;
- the document revoked all previous Wills;
- the evidence overcomes the presumption that the deceased destroyed the original Will with the intention that it no longer operate as their last Will;
- evidence establishes the terms of the Will; and
- evidence establishes that the deceased duly executed the Will or intended the document to constitute their Will.
These matters help the Court determine whether the copy represents the deceased person’s final testamentary intentions and whether it should admit the copy to probate.
What happens if the original Will cannot be found?
If you cannot locate the original Will, you need to establish what happened to it and whether evidence supports the existence and terms of the Will.
This may involve locating:
- a signed copy of the Will;
- earlier or later Wills or other testamentary documents;
- evidence about where the deceased kept the original Will;
- evidence from people who knew about the Will or its circumstances; and
- other documents or evidence that may establish the deceased person’s testamentary intentions.
The Succession Act 1981 (Qld) also contains provisions dealing with lost, stolen or destroyed Wills.
Why is keeping the original Will important?
To avoid extra hassle and expense, keep your original Will safe, preferably in a safe or another secure location.
You should also make sure that the people who will need to administer your estate know where you keep the original Will.
What should you do if you cannot find the original Will?
If you cannot find a loved one’s original Will after their death, do not assume that you cannot administer the estate according to their wishes.
Instead, consider:
- Searching the deceased person’s usual records and secure storage locations.
- Checking whether their solicitor, trustee company or another organisation holds the original Will.
- Locating any signed copies of the Will.
- Looking for evidence of any later Will or document that may have changed or revoked the Will.
- Obtaining legal advice about whether you need to apply to the Court.
When you cannot find the original Will, obtain legal advice early. This can help you identify the available evidence and determine what steps you need to take before the estate can proceed.
Frequently asked questions
Can a copy of a Will be probated in Queensland?
A copy of a Will may be admitted to probate in appropriate circumstances. However, the Court must consider evidence about the existence and terms of the Will and why the original cannot be produced. The Court may also require a Court Order.
What if the original Will has been lost?
If you cannot find the original Will, investigate whether a copy exists and what happened to the original. Legal advice can help you determine what evidence you may need.
What happens if I only have a signed copy of a Will?
A signed copy can provide important evidence of the deceased person’s testamentary intentions. However, the Court may require further evidence before it admits the copy to probate.
Should I keep the original Will?
Yes. Keep the original Will in a safe and secure location. Doing so can help avoid unnecessary difficulty, expense and delay when the estate needs administration.
Get legal advice about a lost Will
If you cannot locate the original Will but have found a copy, obtain legal advice before assuming that you can use the copy to administer the estate.
Our team can advise you about the steps involved in dealing with a lost or missing Will and administering the estate.
Contact our team for advice about probate and estate administration in Queensland.