If an original Will is lost, the following steps are recommended for the named executor.
Step 1: Conduct thorough inquiries
The executor should conduct “proper and reasonable inquiries” to try and find the Will. They should consider the following steps:
1.Search the deceased’s place of residence thoroughly. Look in all potential storage places, such as filing cabinets, safes, or other personal effects.
2. Reach out to the lawyer who drafted the will, or any former solicitors, to see if they have a copy or know its location.
3. Contact banks, financial advisers, and accountants who may have the original in their safekeeping.
4. Contact family members and potential beneficiaries to see if they know the will’s whereabouts.
5. Contact the Public Trustee, as they may have a record or be holding the will. In some States and Territories, the Public Trustee maintains a Will Bank service.
6. Place an advertisement in a legal gazette and other newspapers.
Step 2: Seek legal assistance and apply to the Court for a grant of probate of a copy of the Will
If the original cannot be found, a legal application may be made to the Court to admit a copy to probate.
Five matters must be established in an application to admit a copy of a Will to probate:
1.there was actually a Will;
2. the Will revoked all previous Wills;
3. the applicant overcomes the presumption of revocation that, if the Will cannot be produced to the Court, it was destroyed by the deceased with the intention of revoking it;
4. there is evidence of the terms of the Will; and
5. the Will was duly executed.
This application involves providing evidence and sworn statements to the Court. The executor will need to provide sworn evidence that an original will existed, was properly executed, and contained the terms of the copy they are seeking to prove.
The executor should collect all available evidence, such as a signed copy or electronic copy of the Will, and any witness statements.
The Court presumes that a Will was intentionally destroyed if it cannot be found.
The executor must present evidence to rebut this presumption, such as proving the last known location of the Will, showing the deceased did not intend to revoke it, or explaining how it was lost.
It is recommended that the executor engage a lawyer experienced in wills and estates to help navigate the complex process of proving a lost will. They can assist with conducting inquiries, preparing the necessary court documents, and gathering evidence to rebut the presumption of revocation.
* This article is not legal advice. It has been prepared by STEP Australia as a handout for the 2025 FAAA Congress in Perth. If you or a client has lost an original Will, seek professional legal advice from a STEP member in your jurisdiction.