When a testator dies in New South Wales, the executor of the estate applies to the Supreme Court of NSW for a Grant of Probate of the original Will. However, a problem arises if the executor knows of the existence of a Will because they have a copy, but they cannot locate the original document. In that event, it is not clear whether the testator destroyed the Will to revoke it, or the Will was merely mislaid. This article explains the consequences of missing wills.

Locating a missing Will

An executor attempting to locate the missing Will should conduct thorough searches of all likely locations. To locate a missing Will, an executor should:

1. contact close friends and family members of the deceased;
2. contact the solicitor who prepared the Will;
3. contact the witnesses who signed the Will;
4. contact any previous solicitor who acted for the deceased;
5. contact the NSW Trustee and Guardian;
6. contact any former accountant of the deceased;
7. Check any safety deposit boxes held in the name of the deceased or other family members;
8. Meticulously search through the deceased’s personal papers, belongings and home; and
9. Advertise in a local newspaper for information on the location of the missing Will.

Missing Wills

If an executor has pursued all possible avenues and still has not located the original Will, there is a rebuttable presumption that the testator destroyed the Will. An executor seeking to rebut this presumption must apply to the Supreme Court and make the case that the testator did not intend to revoke the Will. The executor should include in their affidavit any evidence that the testator did not intend to revoke the Will. For example, the executor can stipulate that the testator’s circumstances did not change after the execution of the Will, indicating that the testator would have had no need to revoke the Will. The executor can also note any conversations that the deceased had about their testamentary intentions.

Application for probate on a copy of a Will

The executor must apply for a grant of probate enclosing the copy of the Will in place of the missing original document. The executor’s affidavit accompanying their application should set out:

1. Where the executor obtained the copy of the Will;
2. The executor’s opinion as to why the Will is missing;
3. The extent of any searches for the original Will;
4. Information on the execution of the Will;
5. The name and details of the person who prepared the Will;
6. Any evidence in the copy of the Will confirming the deceased’s testamentary intentions; and
7. The legibility and accuracy of the copy of the Will.

The affidavit should also detail the usual practices of the solicitor who prepared the Will (e.g. whether they typically kept the original in a deed packet or gave it to the client). If the Will was last in the solicitor’s possession, then the solicitor must prepare an affidavit detailing searches undertaken by the firm to find the missing Will. There is no presumption that the testator intended to revoke the Will if the original Will was misplaced whilst in the solicitor’s possession.

The executor must also stipulate the impact of granting probate on the copy of the Will rather than allowing the estate to become intestate. The executor must notify anyone who is entitled under intestacy legislation in NSW of his or her intention to make an application with a copy of the Will. The executor must obtain the consent of prospective beneficiaries or at least provide evidence that they have served notice on them.

When the Supreme Court orders a probate grant for a copy of a Will, it will be a limited grant. The applicant should insert into the Relief Claimed section of UCPR Form 111 a note specifying that there are Qualifications or limitations on the grant: Until the Original Will is found and proved. Also, in UCPR Form 112, the basis of grant should state Probate of a copy of the Will: Limited until the original Will is found and proved. Also, the executor should include a paragraph in their affidavit promising to submit the original Will to the court if they locate it before completing the full administration of the deceased estate.

Case Study

In the case of Sankari v Abouelhamd [2021] the Supreme Court of NSW considered an application for probate where the original Will was missing. The deceased made two Wills during his lifetime, in 2010 and in 2014. The 2014 Will included a standard revocation clause overriding the previously executed Will. A solicitor prepared the2014 Will, but the testator insisted on taking the original of both Wills away with him rather than leaving the 2014 Will with the law firm.

The deceased’s son applied for and was granted probate for the 2010 Will. The deceased’s second wife commenced proceedings to revoke the grant of probate of the 2010 Will and have a copy of the 2014 Will probated in solemn form. The widow stated that if the court decided that the testator had revoked the 2014 Will, then they should also disallow the 2010 Will (as it was revoked by the 2014 will) and rule the estate intestate.

The court noted that the 2014 Will was properly drafted and executed, and the witnesses had submitted affidavits on the validity of the Will. The court accepted that the Will contained the testamentary intentions of the deceased. It found that it was not clear that the testator destroyed the original Will, as the widow had not had a chance to search all the deceased’s property, and the son had made no attempt to search for the later Will. The court ordered that the copy of the missing 2014 original Will should be admitted to probate in place of the revoked 2010 Will.

Contact us if you are an executor who is having trouble locating a missing Will.