So you have made a Will but where exactly is it?
In the top drawer?
In the filing cabinet where all the “important documents” are kept?
In a box in the shed since the last time you moved house?
At the rubbish dump when it was accidentally disposed of in the clean up when Mum and Dad had to leave their home due to ill health?
More importantly, who knows where your original Will actually is, or will there be a need for an expensive game of hide and seek?
What occurs when a deceased person’s original Will cannot be found?
Sometimes a copy of an executed Will can be relied on and admitted to Probate, but there can be a few hoops to jump through.
When an original Will can’t be found, a presumption of revocation arises.
That is, the reason the original Will is missing is because it is presumed the Willmaker deliberately destroyed it with the intention of revoking it.
If the possibility the Will was deliberately destroyed by the Willmaker cannot be eliminated, the estate will be divided up under certain rules on the basis the deceased in fact never had
That might produce some very unintended consequences.
Importantly, any earlier Wills (that might be able to be located) cannot be “revived” because the (latest) missing Will will have often revoked the earlier ones.
A person who applies to the court to try to have a copy of a Will admitted to Probate must show evidence it was improbable the deceased destroyed their Will and intended to cancel it.
Sometimes that can be difficult.
Typically, courts require:
- Evidence that thorough searches have been conducted to locate the original Will. This can include the expense of publishing advertisements;
- Details of the circumstances surrounding the absence of the original Will; and
- Any person affected by any proposed order of the court being given notice of any
application to the court.
Although rare, it is not unheard of for original Wills to go missing when held by law firms (e.g. documents being lost or misplaced when law firms merge or cease trading).
Although the presumption of revocation does not apply in circumstances where someone other than the Willmaker has lost the original, you should certainly:
- Have a copy of your will (if the original is held elsewhere); or
- Keep the original in a safe place and ensure your executor knows where it is.
Do you know where your Will is?