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

There is a range of situations where a person’s will may be absent or compromised upon their death because it has been damaged, destroyed or stolen. A will may get damaged or destroyed accidentally due to being stored in an insecure location such as the testator’s home or the testator may deliberately destroy their will with the intention of revoking it. Alternately, a person other than the testator may steal, damage or destroy a testator’s will in order to obstruct the testator’s intentions for the distribution of their assets. This article outlines what is likely to happen when a will is stolen or destroyed in Queensland.

Safekeeping of wills

There is no register of wills made in Queensland or Australia. It is prudent to store a will in a safe location and to ensure that the person named as executor knows where the will is stored.

When a person has a solicitor draw up a will for them, it is common for the original document to be stored at the solicitor’s office and for the client to retain a copy of the will. Storing the original will with a solicitor makes it much less likely the document will be interfered with.

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

If a person dies and their will cannot be located, a presumption applies that they destroyed the will with the intention of revoking it. This presumption applies if the person was known to have a will and the will was last known to be in their possession.

This presumption can be rebutted with evidence that the testator could not or would not have revoked their will. If the presumption is not rebutted, the estate will be dealt with according to the rules of intestacy.

Accidental destruction

If a will is accidentally damaged or destroyed, this is not enough to revoke the will. A will is revoked if it is damaged or destroyed only where this is done deliberately by the testator with the intention of revoking the will.  This is set out in section 13 of the Succession Act 1981, which states that a will may be revoked by the testator or someone else acting at their direction:

“burning, tearing or otherwise destroying the will with the intention of the testator to revoke it; or writing on the will, or dealing with the will, in a way that satisfies the court, from the state of the will, that the testator intended to revoke it.”

However, if a person dies and their will is discovered in a damaged state, especially if the signatures are illegible, a rebuttable presumption will apply that the testator destroyed the document with the intention of revoking it. If the executor of the estate then applies for probate, they will need to adduce clear evidence that the testator did not intend to destroy the will or that it was damaged or destroyed accidentally. The court may not grant probate in a situation such as this.

Criminal offences where will is stolen or destroyed

In all Australian states and territories there are severe penalties that apply to the theft or destruction of a testamentary instrument or will.

The Queensland Criminal Code 1899  contains a number of offences relating to the theft, forgery, concealment or destruction of a will. These are outlined below.

Fraudulent concealment of will

Section 399 of the Criminal Code 1899 makes it an offence to, with intent to defraud, conceal all of part of a testamentary instrument, whether the testator is still alive or is deceased. This offence carries a maximum penalty of 14 years imprisonment.

Stealing a will

Under section 398 of the Criminal Code a person who steals a will, whether the will-maker is living or dead, is guilty of the offence of stealing. The maximum penalty that applies is imprisonment for 14 years.

Wilful damage of a will

Section 469 of the Criminal Code makes it an offence to wilfully and unlawfully destroy or damage property. A person who destroys or damages a will, whether the will-maker is living or dead, can be sentenced to imprisonment for up to 14 years.

Forging a will

Section 488 of the Criminal Code makes it an offence to forge a document or utter a forged document with intent to defraud. If the document is a will, whether the will-maker is living or dead, the maximum penalty that applies is 14 years imprisonment.

Seek legal advice if a will is stolen or destroyed

If you are an executor or a beneficiary in a matter where a will has been stolen, damaged, destroyed or concealed, it is advisable to seek legal advice about your options as soon as possible.

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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