A look at a court case highlighting where Wills should be stored, what happens when they go missing, and how to protect your estate planning intentions from marriage complications and revocation pitfalls.
The implications of a lost Will can be serious. Too often, the subsequent search comes up fruitless, leading to complex legal proceedings.
If you hold your Will and it is lost, stolen or accidently destroyed, then the courts will presume that you as the testator have deliberately destroyed it and any prior Will made by you will take effect and be admitted into probate. If there are no prior Will/s made by you, then your estate would be distributed as per the intestacy laws in your state.
As several court cases demonstrate, even when families eventually succeed in admitting a copy to probate, the process involves significant time, expense and stress – all entirely avoidable with proper Will storage.
Where should you store your Will?
The best place to store your Will is in your solicitor’s safe. This is an easy and affordable way for you, or your executor (after your death), to access your original Will.
Alternative options include storing it with your accountant, the Supreme Court registrar, financial institutions, private Will banks, or your state’s public trust office (though beware of fees).
If you absolutely must keep your Will at home, invest in a fireproof and waterproof safe. However, we strongly advise against home storage, for reasons that will become clear when we examine some case studies of lost Wills in this blog.
Despite best intentions, Wills still go missing. Understanding the consequences helps explain why proper storage is critical.
What happens when a Will goes missing?
If a Will is lost, stolen or accidentally destroyed, then there is presumption by the court that the testator has intentionally destroyed it. Any prior Will can take effect. If there aren’t any in existence, then your estate would be distributed as per the state’s intestacy laws. This means that your estate could be left to estranged family members and exclude those you intended to benefit.
In this scenario, it would be up to your executor to rebut the presumption of revocation to admit a photocopy of your Will to probate. To do so, they must satisfy these five requirements as per the case of Cahill v Rhodes [2002] NSW SC 561:
- There is actually a Will or document purporting to embody the testamentary intentions of a deceased person;
- The document revoked all previous Wills;
- The presumption that when a Will is not produced it has been destroyed is overcome;
- There is evidence of the Will’s terms; and
- There is either evidence of due execution or that the deceased person intended the document to constitute his or her Will.
Real risk of lost Wills as seen in recent cases
In The Will of David Arthur Friend (deceased) 2023 QSC, solicitor Courtney Locket’s car was stolen while she travelled between her firm’s offices – with the original Will inside. Ms Locket had held the Will after the deceased’s death when the robbery occurred.
The court accepted that since robbery, not intentional destruction, caused the loss, it could overcome the usual presumption and admit a photocopy of Mr Friend’s Will to probate. Ms Locket’s professional status as a solicitor helped her case – a layperson would have faced greater difficulty explaining the Will’s disappearance.
In Sankari v Abouelhamd [2021], the testator made two Wills during his lifetime and took both original Wills home instead of leaving them with his law firm, leading to a family dispute and court proceedings when the later Will went missing.
The deceased’s son was granted probate for the 2010 Will. But after a challenge from the deceased’s second wife, the court ended up ordering that a copy of the missing 2014 original Will should be admitted to probate in lieu of the revoked 2010 Will.
If you are an executor and cannot find the original Will
The first step is to thoroughly search the deceased’s last known address and make enquiries with all the deceased’s asset holders including their known lawyers, banks, financial advisers, accountants, etc., as well as the Public Trustee and Guardian.
If thorough enquiries are made and the original Will is last traced to the possession of the testator, then there is a presumption by the court that the Will was destroyed by the testator with the intention of revoking it (as mentioned above).
In such a situation, you should contact an experienced Wills and estates solicitor to advise you on how to make an application to probate without holding the original Will.
How marriage and divorce affect your Will
Wills don’t just go missing. They can also be deemed invalid or revoked by life events.
For example, your Will/s are automatically revoked upon marriage or upon divorce. It is crucial that a new Will is executed once either of these events have taken place, otherwise in the event of your death, your estate will be distributed as per the intestacy laws and be inconsistent with your wishes.
If you have a Will that was prepared and signed before your marriage, then there is a chance that the Will has been automatically revoked and would not direct your estate in the way you might expect.
However, there are exceptions to the general rule, such as when the Will is drafted “in contemplation” of marriage. For a Will to be made “in contemplation” of marriage, it is advisable to include a clause expressly stating that the Will will not be revoked in the event of marriage. Otherwise, it can be tough and costly to prove a Will was made with an impending marriage in mind.
Read more about “what happens to your Will after separation or divorce” here
The Hoobin case
In the case of Hoobin v Hoobin (2004), the deceased had five children from his first marriage. The deceased told his solicitor he was considering marrying his de facto spouse. The solicitor advised making the Will in contemplation of marriage, but the deceased instructed against this because he expected to die from his cancer diagnosis too quickly. In the event, he did marry his de facto spouse in June 2000, just days before he died.
The court found that his marriage revoked the deceased’s Will. There was a need for a more definite state of mind than the “consciousness of the possibility of marriage.”
How to properly revoke or update your Will
Understanding how marriage affects Wills leads to another crucial consideration: how to update or revoke your Will properly.
As a testator, you have the right to revoke your Will at any stage of your life. However, the best way to directly revoke a Will is to execute a new Will and always seek advice from an experienced Wills and Estates lawyer.
Never attempt DIY changes
Sometimes clients ask us if they can amend the Will themselves later. The answer is No.
The Will itself cannot be altered by obliteration (rubbing out the text), interlineation (writing between the lines), or by any other alteration after the Will has been signed, unless the Will-maker and the two witnesses sign the alteration in the same way as for the whole Will.
Physical destruction is dangerous
Physical destruction of a Will, such as burning or tearing the Will, is a form of revocation that is not recommended. An experienced solicitor should draft a new Will, and the testator should sign it in the presence of two independent adult witnesses. This is the only way to revoke a Will.
The Middleton Cass – when good intentions go wrong
In The estate of Edward Steven Middleton (deceased) 2019, Edward died in December 2018, leaving behind two children. He had executed two Wills during his lifetime.
The first Will was made in 1994 and appointed his daughter as the executor. The second Will was prepared by the Public Trustee of Queensland in 2013. It appointed the Public Trustee of Queensland as the executor and left most of his estate to charity, with no gift provided to his daughter.
In 2016, Edward collected his 2013 Will from the Public Trustee. Edward repaired his relationship with his daughter soon afterwards and expressed to others his intention to leave everything to her, except for a sum to care for his pet dog.
The court found that Edward destroyed the original 2013 Will. But the 1994 Will was plainly revoked by the terms and execution of the 2013 Will. The court considered that mere statements are insufficient to revive a Will. There must be conduct by adoption of the document, or other physical actions that satisfied the court that Edward intended the copy of the 1994 Will to be his last Will.
Based on this, the court found that Edward died intestate, without a valid Will.
Edward’s story illustrates why timing matters in Will planning. Don’t wait to update your Will if your circumstances change.
This brings us to essential protection steps every testator should take.
Essential protection steps
The executors of your estate should be aware of the location of your original Will, should the worst happen. It is also recommended that your beneficiaries be advised of the location of your original Will in the unfortunate event that you and your executors die together. Unnecessary enquiries, searches and a “Will hunt” will be costly to your estate.
We always advise clients that if they wish to create a new Will and revoke an old one, they should “make hay while the sun shines.” Do it now when you are healthy and of sound mind.
If you lose capacity, you no longer have the power to make a new Will or to revoke an existing Will. It will be an expensive, lengthy and energy consuming process having a statutory Will made by the court, especially in circumstances where the outcome is not guaranteed.
Attwood Marshall Lawyers – helping you plan for the future and preserve your wishes
Safe Will-keeping isn’t just about storage – it’s about protecting your family’s future and ensuring your wishes are honoured.
Attwood Marshall Lawyers specialises in estate planning and administration, helping clients preserve their wishes for the future.
The firm stores its clients’ Wills and other important legal documents in a custom-made fireproof strongroom, a free service offered to all clients. We have measures in place to ensure that these documents are always safe and secure.
To set up an appointment with our estate planning experts, please get in touch with our Department Manager, Donna Tolley, on direct line (07) 5506 8241 or by email on dtolley@attwoodmarshall.com.au to arrange an appointment.
We have offices in Coolangatta, Southport, Robina, Kingscliff, Brisbane, Sydney and Melbourne.