Now where did I put that Will?
Occasionally, we see situations arise where the original Will of a deceased person is lost and only a copy can be found. In order to obtain a grant of probate of the Will, in ordinary circumstances, the Court requires that the original Will be filed as part of the probate application.
In the recent decision of In the Will of Nina Elizabeth Mary Greer  QSC 136, handed down on 5 July 2022, Supreme Court Justice Bradley allowed a copy of a Will to be admitted for probate. The full decision of the Court can be found here.
In reaching the decision, Bradley J gave consideration to the five matters identified by Campbell J in Cahill v Rhodes  NSWSC 561 at , which should be established to admit a copy of a Will to probate.
The first four of these matters were established as follows:
In satisfying the first four points, Bradley J turned to the question of whether the presumption of destruction is overcome. This was described by Peter Lyons J In the Will of Warren  QSC 101 at  as being, “… the presumption that, if a Will last traced to the possession of the deceased testator cannot be found, that the Will was destroyed by the testator with the intention of revoking it.”
In the Will of Nina Elizabeth Mary Greer, the evidence before the Court did not trace possession of the original Will to the deceased. Rather, it traced the possession of the original Will to the deceased’s former solicitor. The Will was executed in the presence of the solicitor. The deceased informed her children that she had retained only a copy of the Will. The court was satisfied in any event that it is more likely than not that the original Will was held by the solicitor and was lost in the process of that firm ceasing business rather than at the hands of the deceased.
In light of this decision, it is worthwhile to consider:
If you would like assistance with your estate planning or if you are the executor or a beneficiary in a Will and would like to discuss this further, please contact our Estates and Succession team.