When a loved one passes away, locating their will is crucial to ensuring that their final wishes are carried out. But what if the original will is missing? This situation, often referred to as a “lost will,” can create uncertainty and lead to complex legal challenges.
A lost will doesn’t necessarily mean that the deceased’s intentions can’t be honoured; however, certain steps must be taken to prove its existence, and the process can involve providing evidence in court.
This article explains what to do if you can’t find the original will, how a lost will may still be recognised under Australian law, and what happens if a will cannot be proven.
What Should I Do if I Can’t Find the Original Will?
If you can’t find the original will, don’t panic. There are a few steps you can take to try to locate it. Here’s what you should do:
Check Common Storage Places
Start by searching where the deceased may have stored important documents. Look in filing cabinets, safes, lockboxes, or any private storage in their home. It’s also worth checking places like drawers or even hidden spots, as people sometimes store wills in unusual locations.
Contact The Will Owner’s Lawyer or Law Firm
Many people store their wills with the lawyer who helped draft it. Call the deceased’s lawyer or their law firm to see if they have the original will in storage. If the lawyer retired, contact the law society in your state to check where their files might be stored.
Check With the Public Trustee
In some cases, individuals store their wills with the Public Trustee in Australia. Contacting the Public Trustee’s office in your state might yield results if they kept the will on behalf of the deceased.
Ask Family and Friends
Occasionally, people give copies or the original will to a trusted family member or friend. Ask those closest to the deceased if they know where the will might be.
Search Bank Safety Deposit Boxes
Some people store important documents, including their will, in a safety deposit box at their bank. Check with the bank for any accounts or safety deposit boxes held in the deceased’s name. You may need proof of death and other documentation to gain access.
Look for Any Copies of the Will
Sometimes, a copy of the will might be just as useful as the original. If you find a copy, hold onto it as it may serve as evidence, especially if you can prove the existence of the original will.
Can a Lost Will Still Be Valid in Australia?
Yes, a lost will can still be valid under Australian law. However, it’s more complex than if the original will were available. The court must be satisfied that the will existed, that it was intended to be the final version, and that it hasn’t been deliberately revoked by the deceased. To get a lost will recognised, you’ll need to present sufficient evidence to prove its existence.
In Australia, the probate process for a lost will involves filing an application with the court, usually with the help of a lawyer. This process is known as “proving the will in solemn form,” which means the court carefully examines all the evidence surrounding the lost will to confirm its authenticity.
If successful, the court can admit a copy or draft of the will as the last valid testament of the deceased.
What Evidence Do I Need to Prove the Existence of a Lost Will?
To prove a lost will, the court requires specific evidence to verify that the will existed, was valid, and reflects the deceased’s intentions. Here are types of evidence that are generally accepted:
Copies or Drafts of the Will
A photocopy, digital copy, or draft of the will can serve as evidence that the original existed. This is especially important if the copy or draft is dated and signed by the deceased, showing their intent.
Testimony From Witnesses
People who witnessed the signing of the will can testify that the deceased did indeed sign and finalise the will. Their testimony can be crucial in proving the legitimacy of the lost document.
Statements From Family or Friends
Sometimes family members or close friends may have been informed by the deceased about the contents or existence of the will. Their statements can help reinforce that the will existed and was intended to be the final one.
Affidavit of Search
A lawyer or personal representative may submit an affidavit confirming that all reasonable searches were conducted to locate the original will. This affidavit details where they searched and shows that they made a genuine effort to locate it.
Other Supporting Documentation
Sometimes documents, such as letters or notes from the deceased, might reference the existence of a will. These can help prove that the will existed and was meant to represent the deceased’s final wishes.
Also Read: How to Apply for Probate in QLD
How Do Courts Determine the Intentions of the Deceased if the Will Is Lost?
When the original will is lost, the court’s job is to determine the deceased’s intentions as accurately as possible. Courts look at the evidence presented, focusing on three main areas:
Intent to Create a Will
First, the court will examine whether the deceased intended the lost will to be their valid will. This often involves looking at evidence like copies, drafts, or witness testimonies.
No Evidence of Revocation
If a will cannot be found, courts sometimes assume it was deliberately destroyed by the deceased to revoke it. However, if there’s no sign of revocation, the court will be more likely to believe the will was unintentionally lost. Family or witness testimony can help confirm the deceased’s intentions.
Contents of the Will
The court will try to confirm what the will contained. This might be done by examining copies or drafts, or through statements from people who were familiar with the deceased’s wishes.
Courts strive to respect the deceased’s intentions, but they need clear evidence to ensure their ruling reflects what the person would have wanted. If the court determines the intentions are unclear, they may proceed with intestacy laws (laws that govern what happens when someone dies without a will).
What Happens if the Lost Will Cannot Be Proven?
If all efforts to find the will or prove its existence fail, Australian law treats the deceased as if they passed away without a will, a situation known as “intestacy.” Here’s what happens under intestacy laws:
Distribution of Assets
When someone dies intestate (without a proven will), their assets are distributed according to a set formula in the law. Typically, assets are given to the closest living relatives, such as the spouse, children, or, if there are no immediate family members, extended family.
Appointment of an Administrator
The court appoints an administrator to manage the estate. This person takes on responsibilities similar to an executor, such as paying debts and distributing assets. In most cases, the surviving spouse or a close relative is appointed as the administrator.
Potential for Family Disputes
Dying without a valid will can lead to family disputes over asset distribution. Intestacy laws may not align with the deceased’s wishes, especially if they intended certain assets to go to particular people. This can lead to conflicts and sometimes legal battles among family members.
While intestacy laws offer a structured way to distribute assets, they don’t provide the personal touch that a will can. Having a will ensures your wishes are respected and can prevent family disputes after your death.
Also Read: Process of Distributing Assets with a Letter of Administration
Preserving the Wishes of Your Loved Ones
Handling a lost will can be challenging, especially during an emotional time. However, with the right steps and legal support, it’s possible to prove a lost will and honour the deceased’s wishes.
Always remember to exhaust all options to locate the original will, gather strong evidence if you need to prove it in court, and understand how intestacy laws may apply if the will can’t be located.
For support in managing a lost will or other estate planning concerns, reach out to Walker Pender. Our experienced team understands the complexities of Australian estate law and can provide the guidance you need to protect your loved one’s wishes and legacy.
