Missing Wills (NSW)

After the death of a testator in New South Wales, the executor of the estate applies to the Supreme Court for a Grant of Probate of the original will document. However, a problem arises if the executor knows of the existence of a will because they have a copy, but they are unable to locate the original document. In such a case, it will be unclear whether the testator destroyed the will in an act of revocation, or the will was merely mislaid. This article explains the consequences of missing wills, with reference to a recent Supreme Court decision.

Locating Missing Wills

An executor should conduct thorough searches of all likely locations in an attempt to locate the missing will. In the efforts to locate missing wills, executors should:

• Contact family members and close friends of the deceased;
• Contact the solicitor who prepared the will;
• Contact the witnesses who signed the will;
• Contact any previous solicitor who acted for the testator;
• Contact any former accountant of the testator;
• Contact the Public Trustee of New South Wales;
• Check any safety deposit boxes held in the testator’s name or by other family members;
• Meticulously search through the testator’s personal papers, belongings and home; and
• 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 assumption that the testator destroyed the will. An executor who seeks to rebut this assumption needs to apply to the Supreme Court and make the case that the testator did not intend to revoke the will. In their affidavit, the executor should include any evidence that the testator did not intend to revoke the will. For instance, the executor can note any conversations that the deceased had about their testamentary intentions. Also, the executor can stipulate that the testator’s circumstances did not change after the execution of the will, indicating that the testator would have no need to revoke the will.

Application For Probate On A Copy Of A Will

The executor needs to apply for a probate grant enclosing the copy of the will in place of the missing original document. The executor must attach an affidavit to their application that sets out:

• Where the executor obtained the copy of the will;
• The extent of any searches for the original will;
• The executor’s opinion as to why the will is missing;
• The name and details of the person who prepared the will;
• Information on the execution of the will;
• The legibility and accuracy of the copy of the will; and
• Any evidence that confirms the testamentary intentions deposed in the copy of the will.

The affidavit should also detail the usual practices of the solicitor who prepared the will (for example, whether they typically kept the original on file or gave it to the client). If the will was last in the solicitor’s possession, then the solicitor must prepare an affidavit detailing the searches the firm has undertaken to find the missing will. There is no presumption that the testator intended to revoke the will when the original will was misplaced while it was in the solicitor’s possession.

The executor also needs to stipulate the impact of granting probate on the copy of the will rather than allowing the estate to become intestate. The executor needs to 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 needs to obtain their consent or at least provide evidence that they have served notice on prospective beneficiaries.

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. Additionally, 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

The Supreme Court of NSW recently considered a case involving a missing original will. In Sankari v Abouelhamd [2021], the deceased made two wills during his lifetime, one dated September 2010 and the other dated January 2014. The later will included a standard revocation clause overriding the previously executed will. A solicitor prepared the later will, but the testator insisted on taking the original of both wills away with him instead of leaving the current will on file with the law firm. The testator’s son applied for and was granted probate for the earlier 2010 will. The testator’s second wife commenced proceedings to revoke the grant of probate of the 2010 will and have a copy of the 2014 probated in solemn form. Anticipating the son’s objections, 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 later 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.

If you are an executor who is having trouble locating a missing will, call 1300 038 223 and Armstrong Legal can help you apply for a grant of probate on a copy of a will. Contact our contested wills team for legal advice and representation in any court proceedings.