What happens when a will is lost?

Date: Jul 07, 2014

In some unfortunate situations, when someone dies - neither the family nor the executor can find the will.

Initially, it will need to be determined that the deceased actually created and signed a will, and didn't die intestate.

In most cases, however, the family or the executor of the will should have an idea whether one was produced or not. Some couples create their wills at the same time to avoid making unintentional contradictions to their spouse's will.

Can't find your will?

When a will can't be located, under NSW law, the document is presumed destroyed by the deceased with the intention to revoke its contents. This is subject to two other considerations which include whether the will was last seen with the deceased and whether the will can be traced into their possession.

If someone wants to challenge this particular clause, however, they will need to establish facts which back up this presumption. They will also need evidence to suggest the deceased didn't destroy the will or didn't destroy it with the intention of nullifying its meaning.

It is reasonable, though, that there needs to be proof the will existed in the first place, and that it was signed off correctly and fully by all required parties.

How can I prove someone didn't destroy their will?

Essentially, evidence to prove someone didn't destroy their will can include the unlikelihood of the will maker changing their mind to leave bequests to beneficiaries under the will. If the deceased referenced their will shortly before their death and had no intention of losing or destroying it, this could be another way to prove your case.

In special cases, the court can also find the deceased incapable of interfering with their will.

Disproving intent to destroy

Although it is impossible to know the exact intentions of the deceased, you can produce evidence to support the person didn't intend to destroy their will.

An example of this might be if the will had a full disposition of the property and assets, and no evidence pointed towards deliberate tampering. If there is proof that the person didn't suffer from insanity or a mental illness, this could also explain why someone didn't intentionally destroy their will as well.

In some cases, the will could have been simply destroyed by mistake. For example, in a fire or thrown out in the rubbish.

The next step

Other evidence can help estate lawyers and the family finalise what the will contained. This can include a draft or carbon copy of the will or even a new copy reconstructed from memory.

In some situations, the written or oral declarations made during the will process can be admitted to prove the contents of the lost will.