Having gone through the process of completing your Will, a very important consideration is where you store it. Most law firms who prepare your Will offer to store it for you, and recommend that a copy be kept with your important documentation so that your executors know who to contact when the time comes. You may also choose to keep it in safe custody at your bank or a similar facility.
However, sometimes those options may not be available to you, or you may simply not feel comfortable having it stored elsewhere.
What if your Will cannot be found?
At law, if a Will is lost or missing and cannot be produced upon your death, there is a presumption that it has been destroyed with the intention to revoke the Will. It will therefore no longer be valid.
Whilst there is an ability to apply to the Court for a grant of an informal Will (as the original formal Will is not available), this requires detailed evidence about the existent of the Will, whether it was duly executed, the terms of the Will, where and how it was stored, any circumstances which could have given rise to its misplacement and whether there are any circumstances which may prompt a change or destruction of the Will. If the Court is not satisfied by the evidence in this regard, it is possible that your estate will be administered pursuant to the rules of intestacy, as if you did not have a Will in place at all.
Recent case law
The issue arose in a recent decision of the Supreme Court in Queensland where a declaration was made of the contents of a missing Will (Public Trustee (Qld) v Conmos; Re Middleton (deceased) [2021] QSC 264). The deceased was never married and had no children of his own. He was previously in a long-term domestic relationship with the respondent’s mother, who predeceased him. The respondent’s mother had four children.
The Public Trustee of Queensland (PTQ) applied for an order and was administering the estate pursuant to the rules of intestacy in Qld. The respondent, and the former domestic partner’s three other children were not entitled to share in the deceased’s estate upon intestacy.
The respondent alleged that the deceased had a left a Will of which he previously had a copy but which he had since lost. The original (or a copy) could not be located. There was a suggestion that the deceased’s home had been looted, vandalised and that property was missing, some evidence from witnesses that there may have been a Will in existence and that the respondent’s van was destroyed in a fire where the respondent lost his belongings and papers including a copy of the Will that was given to him.
The Court referred to the presumption that if a Will known to be in existence cannot be produced upon the testator’s death, it is presumed to have been destroyed by the testator and revoked. To rebut this presumption there must be satisfactory proof of the due execution of and the contents of the Will (subject to the informal Will provisions). The standard of proof is on the balance of probabilities.
In this case, the evidence was that the respondent recalls approximately 10 years ago the deceased produced a typed Will with handwritten words and a signature at the end and said that the respondent would be looked after in the future as he would have the deceased’s unit when he died if his mother predeceased him. There were also statements made that the respondent was to be the deceased’s sole beneficiary. The Court held that the evidence supported an inference that the deceased intended the document be his (informal) Will and that the evidence discharged the onus on the respondent as to the contents of the Will.
The question then turned to whether the evidence overcame the presumption of revocation based on destruction. Evidence of change in affection towards the intended beneficiary is important in this regard and has been sufficient to rebut the presumption in other cases. The conditions under which the Will was kept were also relevant. In this case the deceased’s unit was not in a good state. The Court held that there was sufficient evidence to support the inference that the Will was not destroyed with an intention to revoke it.
PTQ’s application for letters of administration upon an intestacy was refused and a declaration was made of a Will (giving estate to domestic partner and in the event that she predeceases to her son) and a grant of letters of administration be granted to PTQ of that Will (as it was deemed that the respondent lacked the skills necessary to administer the estate).
Key takeaway
Accordingly, to ensure that your wishes as recorded in your Will are carried into effect on your death, it is important to consider where and how you store your Will and that copies are available to those who will need it.
If you have any questions in relation to this article, please do not hesitate to contact us.
