A Missing Will; Not Necessarily a Disaster

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What Could Happen if the Original Will is not Found?

In a situation where a loved one has passed away, and you are the appointed Executor and have only a copy of the last Will, you would naturally approach the Solicitor who drew the last Will.

An original Will is Crucial for the application you must make for Probate, which is a Court document that gives you authority to administer the estate.

It is your understanding that the original Last Will has been held in the safe custody of the Solicitor.

The Solicitor tells you that they do not hold an original Will and have records saying it was released to you on a specific date. But you cannot remember where you might have placed the Will!

What Can you Do in this Situation?

There have been many occasions in which the Court has entered a true copy of a Will into Probate, and we have had recent experience of just that outcome.

It requires the gathering of evidence of what has become of the original Will, as far as it is capable of being known.

That means that the Solicitor who drew the Will should prepare an Affidavit of the circumstances in which the Will was drawn, who gave instructions, when and where the Will was finally signed, who were the witnesses, that the Will in every respect was drawn and witnessed properly in accordance with the law.

The Affidavit

This affidavit sets out as precisely as you can recall what happened to the original Will : 

  • if you indeed received it from the Solicitor, 
  • did you sign a receipt for it, 
  • where could you have kept it 
  • what may have happened to it, and so on.

Evidence of Conducting a Search for the Original Will 

There may be third parties to whom you have shown the original Will. You would need to ensure that you did not leave the Will with one of them, and Affidavits from them would be sought to give evidence as far as is known.

If you normally hold essential documents in a safe or a safety deposit box in a Bank, you need to demonstrate that you searched for the Original Will and when and what papers you sorted through. 

Communications and conversations with the bank manager could form part of the evidence.

All of the evidence is presented to the Probate division of the Supreme Court, and an application is made to bring the copy of the last Will into Probate.

The Probate Division of the Court may require that a Judge make a formal Order granting you Probate of the copy Will.

That requires further Applications under the Court Rules, supported by sufficient Affidavit material and Submissions that there is no likelihood of the original Will being found.

Judgement 

A Judge could rule on the evidence, either by way of a hearing in which all of the steps undertaken to find the original Will are presented by witnesses under Oath OR by way of the Judge being presented with all the written evidence that has been gathered.

The Judge will decide whether there is sufficient evidence to allow an Order to be made, giving you the right to enter the copy Will into Probate.

Sounds complicated? You can rely upon our experience and expertise to get the evidence needed to give the best chance at the intended aim, the granting of the Probate and the administration of the deceased person’s estate.

Deceased Estate Lawyers Brisbane

If you find yourself in this situation, the first thing to do is not to panic and come and see our experienced solicitors at Stephens & Tozer, who will guide you through the hurdles.

Call Gary Kliger or Melissa Ban of our office on 3034 3888 to ensure that you get the best advice and maximise the chances of being enabled to achieve the aims of the deceased.

Category: All / Wills and Estates