No Will? There is Still a Way

March 15, 2016

A recent Queensland case has highlighted that even where the original of a will has been lost it may still be possible for probate to be granted to administer the estate.

In the Queensland Supreme Court decision of In the Will of Dianne Margaret Cardie the Court outlined the circumstances in which they will excuse factors which would otherwise cause a will and the associated application for probate to be invalid.

In this case the original will could not be located in spite of extensive searches and advertising.  However, a photocopy of the will was available.

The court outlined 5 factors which must be established to admit a copy of a lost will to probate:

1. it must be established that there was actually a will;
2. it must be shown that the will revoked all previous wills;
3. the presumption of revocation of the original will by destruction must be overcome;
4. there must be evidence of the terms of the will; and
5. there must be either evidence of due execution or that the deceased person intended the document
to constitute his or her will.

In this case the five factors were established largely reliant on the use of the photocopy of the will and the lack of any evidence that the deceased had intentionally destroyed the original or prepared any subsequent will.

The key message from this case is that while it may be possible to receive a grant of probate even where an original will has been lost, there is a significant burden in providing the right evidence to meet the court’s requirements under the five factors outlined above. The administration costs of obtaining the grant of probate will be substantially minimised if this most important document is kept in its original form, in a safe and secure facility, and easily accessible by your executors.

Fox and Thomas has particular expertise in estate administration and has, over the many years we have been assisting clients in this area, been able to obtain a grant of probate in quite challenging circumstances.

If you have any concerns or questions about this area of law please contact our office on 07 4671 6000.