• If There is a Copy of a Will, Is there a Way?

    Posted on January 24, 2014 at 11:57 am under Family Law category.

    If There is a Copy of a Will, Is there a Way?

    A will is an important and life changing document, not just for the testator but also for their family, friends, loved ones and business partners. A properly constructed will deals with the entirety of a person’s estate in a clear and concise manner, providing a guarantee that the estate will be settled in accordance with the testators wishes. But what happens in the unlikely case your will is lost?

    The court rules prevent a registrar from granting probate where the original will is not available. There is also a general presumption that a failure to produce the original means that the will has been revoked or destroyed. In many situations, a failure to produce an original version of a will would mean that the person died intestate (without a valid will), and the court would be required to determine the distribution of the estate in accordance with the Succession Act 1981 (Qld).

    However, whilst the registrar cannot grant probate unless the original will is available, the Supreme Court can. Should a copy of the will exist, the common law allows a judge to admit the copy to probate.

    A recent Supreme Court decision highlights the ability at common law to admit a copy of a will to probate where the original is lost, mislaid, destroyed or not available. In the will of Dianne Margaret Cardie [2013] QSC 265, the deceased’s mother was able to provide a copy of the deceased’s will to the Public Trustee. A comprehensive search was undertaken to locate the original will, including public advertisements, however the original was unable to be found.

    The copy of the will indicated that the original will was properly executed, revoked all previous wills and contained a rational distribution of the deceased’s estate. In the copy will it states that the deceased’s son is the sole beneficiary.

    Chief Justice de Jersey pointed out that incidental to the proceedings, the son would also be the sole beneficiary should the estate be ruled intestate.

    His Honour reiterates in his decision that the power to admit a copy of a will comes from the common law, and not from s 18 of the Succession Act as some would contend. S 18 is not applicable because the testator (person writing the will) did not intend for the copy to be their will, they intended for the original to be their will and for the copy to express the wishes of the original.

    Chief Justice de Jersey outlines the principles that are applicable in the admission of a copy of a missing will to probate in Queensland. Those principles are:

    The copy demonstrates that there was an original will.

    The copy provides for the revocation of all prior wills.

    The terms of the will are clear and comprehensive.

    The original was properly executed (as witnessed by the copy).

    The presumption of revocation must be rebutted. In this case the presumption of revocation was rebutted because:

    The testator’s condition in life supported a potential inference that the will was mislaid or lost.

    The will was created prior to the Public Trustee commencing its administration.

    There was also no observed change in the circumstance of the testator that would warrant a change of testamentary intention between the will’s creation in 1989 and the death of the testator in 2002.

    BM Law deals with all aspects of Wills and Estates. For advice in regards to creating, contesting or administering a will, call BM Law on (07) 3482 6999.