A ‘lost’ Will is not automatically a ‘revoked’ Will – lost vs revoked
A Will is valid until it is intentionally revoked by the Will-maker. (The Will-maker must be of sound mind to revoke a Will.) A person holding a POA for the Will makers cannot destroy a Will.
But what happens if the Will can’t be found? What if you can only find a copy of the original Will? Being ‘lost’ is not the same as being ‘revoked’.
Was the Will lost? Was it:
- hidden to preserve it?
- misplaced either by the will-maker or somebody else?
- destroyed by mistake, such as in a house fire?
- destroyed without the Will-maker’s permission?
If the Will has been lost (rather than revoked) you can seek to prove an unsigned copy or signed copy of the Will. (Even a Will that was never signed can be potentially enforced by the Court.) You need to prove to the Probate office:
- the unsigned copy of the Will is accurate
- the will was validly signed and witnessed; and
- the will was not intentionally destroyed by the Will-maker
If the Will was built at our law firm’s website at http://www.legalconsolidated.com.au/ then you can log back in and get an unsigned copy of the Will.
However, if these records are not available then this task is more difficult. The executor faces the onerous task of trying to retrace what occurred to the Will after it was signed and locating the witnesses.
The executor may also need to obtain consent from anyone who is adversely affected by the lost will being approved. This is usually the deceased’s family who would receive the estate on intestacy.
But the Will was with the deceased
If the Will was last known to be with the Will-maker then it is presumed that the Will-maker intentionally destroyed the Will – thus revoking it. Therefore, as part of the process of proving the true copy of the will, it needs to be established that the original will was held by someone other than the deceased. See Re Estate of Hall (Deceased)  SASC 117.
If you die without a Will then the intestacy rules apply. You get the power to make a Will from each State’s legislation. An older Will may prevail if the ‘latest’ now revoked Will was never valid in the first place.
Alternatively, if you make a valid new Will, this destroys the old Will. If you now destroy the new Will this does not magically allow the old Will to be operational again. In that case you die intestate – without a Will.
Keep your Will safe
Keeping an original Will safe and secure is important. Also, let your executors, family or a trusted friend, know where it is stored.
For help building your Estate Planning online please telephone us.
Adjunct Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
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