In estate law an ‘executor’ is the individual in charge of ensuring that deceased person’s intentions regarding their estate are carried out in accordance with their last Will. Usually, to act as the executor of the estate of a deceased person, an individual must obtain permission known as a “grant of probate” from the Supreme Court of the state or territory. To obtain the grant of probate, the executor must file an application that includes the original Will.

Where a Will was last in the possession of the deceased and it can’t be found after their death, the law presumes that the Will has been destroyed by the deceased with the intention of revoking it.

This presumption can be rebutted by proving that (a) a valid Will did exist and (b) there are additional facts that show the deceased did not intend to destroy and/or revoke the Will. 

Once the Court is satisfied that a Will existed, then other evidence may be presented to establish the contents of the Will.  In considering whether the Will was destroyed with the intention of revoking it, the Court will consider the following:

  • the nature of the Will and likelihood that the maker changed their attitude towards the beneficiaries;
  • any reference by the Will maker to the continued existence of the Will;
  • the circumstances of the deceased, for example where a disabled Will maker might not have the physical capability of destroying a Will;
  • whether the Will provided a careful and full disposition of the deceased’s property;
  • whether there is no proof of insanity; and
  • evidence that indicates destruction or loss of the Will was a mistake.

When the original Will cannot be found, the executor may still be able to obtain a grant of probate using a copy of the Will. This can be done by filing the copy of the Will, together with an affidavit, explaining how they have obtained the copy. The affidavit must also set out what actions have been taken to search for the original Will. The executor should also state in the affidavit that they will produce the original Will if it is found.

When a person dies without a Will, they are said to have died “intestate”, What this happens, their estate will usually be distributed in accordance with the rules of “intestacy”. The executor’s affidavit must set out how the estate would be distributed according to those rules. When applying for a grant of probate using a copy of the Will, if the copy of the Will supplied by the executor does not cover some of the individuals who would receive a distribution under the rules of intestacy, then these individuals must be served with a notice that probate is being applied for using a copy of the Will.

If there is reason to believe that the original Will was last in the possession of the deceased, then the Court will presume that the deceased destroyed the Will with the intention of revoking (cancelling) it. If the executors possess evidence to the contrary, this information should be presented to the Court in the executor’s affidavit. 

If you are an executor of a deceased estate and you find yourself in a situation where no original Will can be found or you have any queries with respect to the Will, it is advisable to discuss your concerns with a legal professional. Contact one of our Wills and Estates experts at Craddock Murray Neumann lawyers.

The law is complex and changes frequently. The law may have changed since this article was published.

Blog author: Angus Verheul