Angela Harry, Wills and Estates Partner at Attwood Marshall Lawyers, examines several cases that highlight the consequences of an original Will going missing. People must navigate a convoluted process to substantiate a photocopy of the original Will during the probate application. Having to substantiate a copy of a Will can lead to additional expenses and emotional strain for the bereaved, which could have been mitigated by ensuring enhanced security measures for the original document.
Probate – an overview
Probate is the legal process after a person’s death to validate and authenticity of their last Will. It involves proving the validity of the Will in the Supreme Court and obtaining a court order, also known as a grant of probate, which grants the executor the legal authority to administer the deceased person’s estate according to the terms of the Will. The estate may include real property, bank accounts, investments, and personal belongings.
While the general concept of probate is consistent across Australia, there can be variations in the specific procedures and requirements for obtaining probate in different States and Territories. Each State and Territory has its legislation and rules governing the probate process, and these can differ in terms of the documents required, court fees, application procedures, and timelines.
Whether a grant of probate is required can depend on the nature and value of the deceased person’s assets, whether they owned property solely or jointly, and if they had a valid Will. Probate is typically required when the deceased person owns assets of value solely in their name.
Additionally, some financial institutions or government departments may have rules or thresholds regarding releasing funds or assets without probate.
Obtaining a grant of probate can be challenging and complicated at the best of times. To make matters worse, if someone cannot locate the deceased’s original Will, it can make a complicated process even more convoluted.
The case of the missing Will – the Will of Anna Ang Lee Chin
We recently had a decision published in the Supreme Court of Queensland that dealt with an executor seeking to obtain probate with a certified copy of a Will, as the original document had gone missing.
In this case, the Will of Anna Ang Lee Chin (also known as Anna Ang Lee Chin) [2023] QSC 28, the deceased had made a Will in the 90s with her solicitor. Some years after making the Will, the deceased requested the original document be sent to her to keep at home.
In the early 2000s, the deceased provided a certified copy of her Will to her sister, the beneficiary and executor. She instructed her on what to do as executor when she passed away.
When the deceased passed away, the executor of the Will took steps to administer the estate, which required probate. It was only then that she was alerted that the certified copy of the Will she held was not sufficient to use to obtain a grant of probate.
As is often the case with missing Wills, the first step for the executor was to search amongst the deceased’s belongings and paperwork to try and locate the original document.
When this was unsuccessful, searches were undertaken to trace the chain of custody of the original Will, including contacting the former solicitor as well as writing to banks and other solicitors the deceased had used over the years to see if they held documents in safe custody for the deceased.
As the original Will had been lost, the executor needed to seek permission to admit a copy of the Will to probate before a judge for determination.
For an executor to be successful in an application for probate of a copy of a Will, there are five factors the court must be satisfied with, supported by case law.
These include:
- That a Will or document was embodying the testamentary intentions of the deceased.
- That the document revoked all previous Wills.
- The applicant overcomes the presumption that if the Will cannot be produced to the court, it was destroyed by the testator with the intention of revoking it.
- There is evidence of the terms of the Will, and
- The Will was duly executed, or the deceased person intended the document to constitute their Will.
In the case of the Will of Anna Ang Lee Chin, the court was satisfied that on the evidence, all five factors had been met, and probate of the copy of the Will was granted.
However, the process the executor had to go through was far more complicated, time-consuming, and costly than a standard probate application.
The case of the stolen Will – the Will of David Arthur Friend
In another case the Supreme Court of Queensland heard in 2022, there was a similar application for probate over a photocopy of a Will in the Will of David Arthur Friend (deceased) [2023] QSC7.
The circumstances of this case are particularly relevant to lawyers and other professionals entrusted with important original documents for their clients.
The deceased’s original Will was in the custody of the solicitor who drafted the Will. It had been stolen from the solicitor’s car while driving between her firm’s two offices.
In her application, the solicitor told the court that her car was broken into and while the car was later found, the contents of the car – including the Will – were missing.
The court granted probate on the copy of the Will that the law firm held on file, mainly based on the solicitor’s deposition.
Unfortunately, these scenarios are far from uncommon.
These cases show how important it is to be careful where you store your original Will.
What happens if a copy of a Will does not meet the requirements for probate
If the five factors required to establish that probate of a copy of a Will are not accepted by the court, then the document will not be admitted to probate. In these instances, the deceased’s estate is distributed in accordance with the prior Will, or if no prior Will exists, then the laws of intestacy apply.
The laws of intestacy are a statutory formula that determines how the estate of a deceased person is to be distributed where there is no Will. Each state and territory has different intestacy laws.
Safeguarding your Will
The message in all of this is that the security of the original Will is paramount. Storing a Will with a professional advisor can avoid the additional costs and stress associated with having to prove a copy of a Will or reconstruct a Will from evidence.
Attwood Marshall Lawyers stores its client’s Wills and other important legal documents in a custom-made fire-proof strongroom, a free service offered to all clients.
The strongroom was designed and built in 1989 and is only accessible by key personnel.
An electronic security document management system keeps track of all documents in the strongroom. Attwood Marshall Lawyers’ premises are securely locked and protected by motion detection alarms linked to a private security company that monitors 24/7.
These measures ensure that original Wills and other important documents are always safe, giving clients peace of mind that their documents will never get damaged, lost, or stolen.
This is just an example of what we have in place, and it may seem over the top; however, when you witness the consequences of what happens when these documents go missing, you can understand the value of ensuring original documents are as safe as possible.
Most people think their documents are stored safely at home in a lockable filing cabinet. However, unexpected things can and do happen, like fires, floods, and theft.
By all means people should keep a copy of their Will and critical legal documents; digital copies are always provided when getting your Will drafted for your reference.
Attwood Marshall Lawyers – leading experts in estate planning and estate litigation
With one of Australia’s largest and most experienced Wills and Estates departments, we understand the difficulties many people face when trying to locate the Will of a loved one or when people are involved in disputes with executors or someone holding the Will who refuse to cooperate.
We strive to help people uphold the wishes of the deceased and ensure matters involving Wills and estates can be resolved quickly and effectively to reduce stress when people are facing grief and other challenges.
If you need advice about locating a Will or assistance with obtaining a copy of a Will or a grant of probate, please get in touch with our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071.
