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What Happens if a Will is Stolen or Destroyed? (NSW)

There is a range of situations where a will may become compromised because it has been damaged, destroyed, stolen or concealed. A will may get damaged accidentally due to being stored in an insecure location or the testator may deliberately destroy the document with the intention of revoking their will. Alternately, another person may steal, damage or destroy a testator’s will in an attempt to obstruct their intentions for the distribution of their estate. This article outlines what is likely to happen when a will is stolen or destroyed in New South Wales.

Safekeeping of wills

There is no register of wills in New South Wales or Australia. It is prudent for a testator to store their will in a safe location and to ensure that the executor/s know where it is stored. 

When a person engages a solicitor to make their will, it is common for the original will to be stored at the solicitor’s office and for the client to retain a copy of the document. Storing the original will with a solicitor makes it much less likely the document will be stolen, damaged or destroyed.

What if a will is stolen or destroyed but this can’t be proven? 

If a person dies in New South Wales and it is known that they had made a will but the original will cannot be located, there is a presumption that the testator destroyed the document with the intention of revoking it. 

The strength of this presumption depends on the circumstances of the case. The court will take into account factors such as how detailed the provisions of the will were, the location the will was stored in, any steps the testator took to protect the will and the circumstances surrounding the document’s absence.  

The presumption that the testator intended to revoke the will can be rebutted by the executor adducing evidence that the testator could not or would not have revoked their will. 

An application for probate generally requires the original will document to be attached. However, in some circumstances, where there is evidence that a will was lost or destroyed accidentally and that the testator did not intend to revoke the will, the court has accepted a photocopy of the will and granted probate. 

However, if the Supreme Court finds that the presumption has not been rebutted, the estate will be dealt with according to the rules of intestacy. 

Accidental destruction

If a will is accidentally damaged or destroyed, this does not automatically revoke the will. A will is revoked only if it is damaged or destroyed deliberately by the testator with the intention of revoking the will.  

This is set out in Section 11 of the Succession Act 2006, which states that a will can be revoked 

“by the testator, or by some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it, or by the testator, or by some person in his or her presence and at his or her direction, writing on the will or dealing with the will in such a manner that the Court is satisfied from the state of the will that the testator intended to revoke it.”

However, if a person’s will is discovered in a damaged state, especially if the signatures have been torn off or are illegible, a rebuttable presumption applies that the testator destroyed the document with the intention of revoking it. If the executor then applies for probate, they will need to adduce clear evidence that the testator did not intend to destroy the will or that the document was damaged or destroyed accidentally. There is no guarantee that the court will grant probate in this situation. 

Criminal offence where will is stolen or destroyed

Section 135 of the Crimes Act 1900 makes it an offence to steal, destroy, cancel, obliterate or conceal all or part of a will either during the testator’s life or after their death and regardless of whether the will deals with real estate, personal estate or both. The maximum penalty for this offence is imprisonment for seven years. 

Seek legal advice if a will is stolen or destroyed

If you are involved in a matter where a will is stolen or destroyed, it is advisable to seek legal advice about the best way to proceed as soon as possible. Depending on the circumstances and the evidence that exists, it may still be possible to obtain a grant of probate. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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