Can you obtain Probate of a copy of a Will?

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Posted By and on 17/05/22 at 11:41 AM

What happens when an original Will cannot be located and when can you obtain probate of a copy of that Will?

Generally, in order to obtain a grant of probate of a Will once a person has died, you are required to produce the original Will to the Registrar of Probates with your application.

Sometimes an executor appointed in a Will may not know where the deceased’s original Will is located and, despite their best efforts, may be unable to locate it. What can they do if they only have a copy?

This issue arose in a recent decision of the Supreme Court of Victoria where probate was granted of a copy of a Will which was unsigned and undated (Ulman v Mom [2022] VSC 186).

Background

At the time of the deceased’s death only an unsigned and undated copy of his Will could be located. The Will was prepared and witnessed by the deceased’s solicitor but the deceased retained the original. A copy of the unsigned Will was held in the solicitor’s file. The Will appointed the deceased’s sister as executrix and sole beneficiary. The application for a grant of probate of the unsigned Will was contested by a female work colleague who lived with the deceased with her children. The nature of their relationship appeared to be contentious as to whether they were in a domestic relationship, were akin to a family unit or were simply landlord and tenant.

The estate comprised of a property in Cranbourne with a mortgage of approximately $48,000 and personal estate of approximately $40,000.

His Honour Justice Moore reiterated the general principles required to prove a ‘lost Will’:

  • that the Will existed;
  • that the Will revoked all previous wills;
  • that the presumption of destruction by the deceased animo revocandi (i.e. with an intention to revoke it) is overcome;
  • there must be evidence of the terms of the Will;
  • there must be evidence of due execution of the Will.

The contention in this proceeding was based on the presumption of destruction – “if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it”: Re Demediuk (No 3) [2019] VSCA 79.

There was evidence of discussions with the solicitor after his stage 4 cancer diagnosis as to whether the deceased wanted to change his Will, which he did not. He denied there was a relationship with the woman that lived with him. Discussions about the location of the Will also took place and the evidence was that the deceased was ‘adamant’ he had a Will, leaving all to his sister, and that it must be at home because the solicitor did not have it. Despite advice to update his Will, he chose not to, being satisfied with what he had in place.

The court’s findings

His Honour was satisfied that the presumption of revocation was rebutted. The Will was rational and completely disposed of the deceased’s estate. It was apparent from the evidence of the solicitor that the deceased had retained the original signed Will and that he had not destroyed it, despite some confusion as to where it was. Despite changes in the deceased’s living arrangements after execution of the Will, the subsequent discussions with the solicitor after his cancer diagnosis evidenced that his testamentary intentions remained the same. His Honour also commented on the fact that the residents of the Cranbourne property had access to the deceased’s documents after his death.

The applicant sister succeeding in overcoming the presumption of destruction and revocation and orders were made that probate of the copy Will be granted to her.

For a similar case, and further information on obtaining probate of an informal Will, please read our earlier article Where you store your Will is more important that you know!, where we discuss the Queensland decision of Public Trustee (Qld) v Conmos; Re Middleton (deceased) [2021] QSC 264. In that case, a declaration was made of the contents of a Will that could not be located and there was no copy available.

If you have any questions, please don’t hesitate to contact us.

KHQ Lawyers - Rachael Hocking

Rachael Hocking Special Counsel

Rachael is a highly experienced Wills & Estates lawyer.  She is an accredited specialist in Wills & Estates with the Law Institute of Victoria, and is also a full member of the Society of Trust... Read More

Ines Kallweit Principal Solicitor & Notary Public

Ines Kallweit leads our Wills & Estates team.  She is an Accredited Specialist in Wills & Estates (with the Law Institute of Victoria), a member of the Society of Trust and Estates Practitioners,... Read More