Understanding the Legal Implications of a Missing Original Will

When a person dies, leaving behind a valid Will, their appointed Executor may be required to initiate the process for a Grant of Probate. This procedure grants them the authority to manage and distribute the assets of the deceased as dictated by the Will. Only one original Will can exist at any given time, though several copies may be made.

The original Will is a critical requirement when seeking a Grant of Probate in Queensland. But what ensues if this crucial document cannot be located?

Understanding the Role of a Will

A Will is as a legally binding document which outlines your desires regarding the distribution of your estate upon your death. It stipulates who will receive your assets (i.e., the beneficiaries) and appoints a trusted individual (the Executor) to oversee the distribution.

This document, duly signed by the testator and the witnesses, is referred to as the original Will. This document is usually securely bound, and any tampering may raise questions about its legitimacy.

Why the Original Will is Essential for a Grant of Probate

In Queensland, the Grant of Probate constitutes official approval of the Will’s legal validity. Issued by the Supreme Court of Queensland, this document recognises the Will as the deceased’s final valid one. In many cases (but not all) the Executors are required to obtain a Grant of Probate before dealing with the estate’s assets.

To apply for a Grant of Probate, it is necessary to tender certain documents, including the original Will and certificate of death. A distinct procedure is required if the original Will is unattainable.

Steps to Follow When the Original Will is Untraceable

In scenarios where the original Will cannot be found, an application is lodged with the Supreme Court of Queensland, which is subsequently reviewed by a judge.

Five essential factors must be established:

1. Existence of a Will;
2. Revocation of any previous Wills;
3. Counteracting the presumption of intentional destruction of the Will;
4. Evidence of the Will’s terms; and
5. Proof of due execution of the Will.

In order to satisfy ‘due execution’ of a Will in Queensland, certain conditions must be met. The Will must be written, signed, and dated by a legal adult with the mental capacity to do so, in the presence of at least two witnesses. These witnesses, also adults, must sign the Will in the maker’s presence and in the presence of each other, and cannot be beneficiaries of the Will.

Conducting Comprehensive Enquiries for a Lost or Missing Original Will

When applying for a Grant of Probate for a lost or missing original Will, the application should show that ‘proper and reasonable inquiries’ have been made to locate the original Will. It’s common for the Executor to engage a law firm for help with these inquiries.

Reasonable efforts may consist of:

• A thorough search of the deceased person’s property;
• Reaching out to family members, beneficiaries, or lawyers who might know the Will’s location;
• contacting the Public Trustee, Queensland Law Society, financial advisors, accountants, banks, and/or the deceased person’s solicitors; and
• Placing an advert in the Queensland Law Reporter and other relevant newspapers.

Preventing Your Original Will from Getting Lost or Going Missing

To prevent the loss or misplacement of your original Will, you can choose to have it prepared by a solicitor who typically provides a safe custody facility to store it at no cost. You can then distribute copies to your Executors if you wish to do so.

If you possess your original Will, ensure it is kept in a safe, fireproof and waterproof location, and inform your Executors of its whereabouts.

Seeking Legal Assistance

The process for acquiring a Grant of Probate for a missing or lost Will can be complex. If you need help with an application for a Grant of Probate of a missing Will, don’t hesitate to get in touch with Cairns Wills and Estates Lawyers.