If you can’t find the original Will, it usually isn’t lost. Many are sitting in safe custody at the firm that prepared them, so the first call you should make is to the lawyer who made it. If the deceased did keep the original themselves and it still can’t be found, Western Australian law presumes they destroyed it to revoke it. We recommend you seek legal advice before taking any steps to administer the estate.
Where should you look for the original Will?
Start with the law firm that prepared the Will. Law firms hold original Wills in safe custody, so plenty of people sign a Will and never take the original home.
Work through these:
- the lawyer who prepared the Will and any other lawyer the deceased used. If the firm has since closed, its safe custody packets will have gone to another practice. The Law Society may be able to point you in the right direction;
- safe custody at the deceased’s bank, including a safe deposit box;
- the deceased’s accountant, financial adviser or broker;
- the house itself, including a home safe, a filing cabinet and the unopened mail; and
- ask trusted friends and family and the executor named in the Will.
Why does the Court need the original?
The Court needs the original because a Will can be revoked by destroying it, so producing the original is how you show it was still in existence when the deceased died. Handing up a copy leaves that question open, so the Court has to decide whether the original is merely lost or whether the deceased destroyed it deliberately.
The original also carries evidence a copy can’t. Staple holes and a torn corner tell the Registrar whether anything has been attached to the Will or taken off it since it was signed.
What is the presumption of revocation?
The presumption of revocation applies if the original Will was last known to be in the deceased’s own possession and can’t be found after the death. To revoke a Will is to cancel it, which is what the law presumes the deceased did by destroying it. The estate is then dealt with as though there had never been a Will.
A missing Will doesn’t necessarily mean it has been revoked. If your evidence satisfies the Court that the deceased didn’t destroy the Will meaning to cancel it, the Court can grant probate of a copy of the Will.
What evidence displaces the presumption?
The Court wants a full account of the Will’s life, from the day it was signed to the day it went missing. Your affidavit will need to cover:
- the circumstances in which the original Will was made, including who prepared it;
- the place the original was kept and who had access to it;
- what may have happened to it;
- the searches you have carried out to find the original, in detail and by name;
- how you came to have the copy; and
- why you believe the deceased didn’t destroy the Will meaning to cancel it.
The Court is looking for evidence that the deceased still treated the Will as current. A conversation shortly before the death about what the Will said will help. So will a reference to the Will in a letter to their accountant or evidence that somebody else cleared out the house before you got there.
Affidavits from the witnesses and from the lawyer who prepared the Will both count. So do the lawyer’s file notes from the day the Will was made. For what the rest of the application involves, see How to apply for probate in Western Australia.
What happens if the Will is never found?
If no Will can be found and the presumption can’t be displaced, the estate passes under the rules that decide who inherits when there is no Will. The application becomes one for Letters of Administration, which is the Supreme Court order made when there is no Will, rather than a Grant of Probate. Who takes the estate is then fixed by a table in the Administration Act 1903 (WA) rather than by anything the deceased wrote.
See What are the rules of intestacy in Western Australia? and our Letters of Administration page.
Frequently asked questions
Can you get probate of a photocopy of a Will?
Yes, if the Court is satisfied the deceased didn’t cancel the Will by destroying the original. The application needs affidavit evidence about the search and the circumstances, so it may take longer than a standard application and is likely to cost more too. See What is probate in Western Australia?
Is a scan or a photograph good enough?
Yes, a scan or a photograph can be the copy you put to the Court, though the quality matters. The Court wants a complete, legible copy showing every page and every signature, including the attestation clause the witnesses signed under.
What if the firm that held the Will has closed?
A closed firm’s safe custody packets are usually transferred to another practice. Contact the Law Society of Western Australia to ask which firm took them over.
Does finding a later Will change things?
Yes. A later valid Will cancels the earlier one, so keep searching even after a Will turns up. The document you apply on is the last valid Will the deceased made.
Talk to us about a missing Will
We prepare applications for probate of a copy Will, including the affidavit evidence the Court needs about the search and the circumstances. Call the probate team on (08) 9220 4490 or see our Grant of Probate page.
Related: Do you need a grant?
This article is general information about the law in Western Australia and is not legal advice. Your circumstances may change the answer, so please get advice on your own situation.
