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What Happens If The Original Will Cannot Be Found? (SA)

In South Australia to obtain a Grant of Probate and be able to redeem a deceased’s assets, the executor named in a will must lodge the original will with the Supreme Court. A problem can arise if the original will cannot be found by the executor, and they only have a copy.

An executor should always complete thorough searches for the original will. These searches should include contacting the solicitor who drafted the will (if applicable), contacting any of the testator’s former solicitors, banks safe custody that the executor understands the testator may have banked at during their lifetime, the deceased’s accountant or former accountant, and the Public Trustee of South Australia. The executor should also complete thorough searches of all the testator’s personal papers and a thorough search of their home to locate the original will. To exhaust all efforts to locate the original will, it might also be useful to advertise in a local newspaper where the deceased person resided.

What happens if the executor does all this and the original will cannot be found?

In a situation where so far as the executor is aware, the will was last known to be held by the testator themselves before their death, and the will now cannot be located, this results in an inference that the will was destroyed by the testator. The Supreme Court of South Australia would therefore presume that the testator had the intention to revoke the will. If the executor is seeking to administer the estate according to the will, they must rebut this presumption by proving that the deceased did not revoke their will. The executor needs to prove that even though only a copy of this will can be found, the deceased intended this to be their final will.

Application for a Grant of Probate with a Copy Will

For the Supreme Court of South Australia to grant probate of a copy will, it requires the following evidence from the executor under Rule 69 of the Probate Rules 2015:

  1. Circumstances surrounding how the will was lost;
  2. Who prepared the will;
  3. Confirmation that the will was properly executed pursuant to the Probate Rules;
  4. Details as to who previously had possession of the original will;
  5. Evidence (if held) that the will existed after the death of the deceased;
  6. Evidence to rebut the court’s presumption that the deceased intended to revoke the will;
  7. Evidence of the accuracy of the copy of the will held;
  8. The investigations made to locate the original will(as mentioned above); and
  9. Any evidence as to the deceased’s words or actions that may have shown testamentary intentions, confirming the dispositions in the copy will.

This evidence is to be provided to the Supreme Court of South Australia in the form of an affidavit, together with the application to obtain a Grant of Probate of the copy will. A copy of the will itself held by the executor will also need to be provided to the court, and the executor will be required to give an undertaking to the court to bring the original will to probate if found.

If there are any parties who are negatively impacted by a Grant of Probate being made of a copy will, such as persons entitled to the estate on intestacy but not the copy will, they will need to be notified and their consent sought for the copy will application. This consent must be provided in writing. If the prejudiced person is not a minor or under a disability, the court can dispense with this requirement, particularly if the prejudiced person cannot be found.

Once the above evidence is provided to the court, the court may still have doubt surrounding the application and copy will and can request further evidence be filed by the executor to establish the fact that the deceased did not intend to revoke their will despite the fact that the original cannot be found.

What if a solicitor has lost the original will?

If a deceased’s will was held in safe custody by a solicitor and the solicitor has lost the original will, the process differs to if the original will has been lost by the deceased or is unable to be located by an executor. If a solicitor has lost the original will, but a copy of this will is still held, the court does not presume that the deceased intended to revoke their will. In this circumstance, the solicitor who lost the deceased’s will has the obligation to provide evidence to the court explaining that the original will cannot be found and how it was lost.

If you are the executor named in a will and have completed thorough searches to locate the original will and are unable to, Armstrong Legal can assist you with the process of obtaining a Grant of Probate of a copy will.

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

Madeleine Purcell - Associate - Melbourne

This article was written by Madeleine Purcell - Associate - Melbourne

Madeleine Purcell graduated from Deakin University in 2017 with a Bachelor of Laws (Honours) and a Bachelor of Arts majoring in psychology. She completed her Graduate Diploma of Legal Practice at the College of Law and was admitted to practice at the Supreme Court of Victoria in April 2018. Madeleine has primarily worked in the areas of wills & estates...

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