“Oh No! I’ve Lost The Will!”

July 27, 2020 Madsen Law

What do you do if you have a photocopy, but you cannot locate the original Will?

This is a big problem because if the original Will cannot be found, the law presumes this is because the Testator destroyed it with the intention of revoking it.

In a Supreme Court case heard on the 26th of June 2020, which also featured Covid-19 Pandemic, this was the situation the Court was faced with.

The deceased made her Will with Solicitors Lang Hemming & Hall on the 2nd of September 2014 who held the original Will for safekeeping.

The Solicitors suffered during the Covid-19 Pandemic and a Liquidator was appointed.

It was unclear what happened to the Will, because the Solicitors failed to keep a file, or even a record of the file (we keep electronic and paper safe custody records to avoid that scenario ever occurring).

The Court hypothesised there were three realistic possibilities for the lost Will:-

  1. The Will was sent by the Solicitors to the deceased who lost it, perhaps during her move to the Aged Care Facility.
  2. The Will was sent to the deceased who destroyed it with the intention of revoking it; or
  3. The Will was retained by the Solicitors who lost it perhaps during the Liquidator’s winding up.

The Court was satisfied it was most likely that the original Will had been lost by the Solicitors. The Court therefore granted Probate on the photocopy of the Will.

Three takeaway points from this case are:-

  1. It is important to keep your Will updated as your life circumstances change, so too must your Will.
  2. Keep your Will in safe custody (the safest is with a Solicitor with proper record keeping).
  3. Tell your Executors where your original Will is located.