Is a copy of my Will valid?
There’s a good chance it’s not.
Lost Wills and Legal Loopholes
Imagine this: a loved one passes away, and while you know they had a Will, the original document is nowhere to be found. All you have is a photocopy. What now?
In the world of estate planning, the original Will is usually essential for obtaining a grant of probate. But what happens when the original can’t be found?
If you can’t find the original but only have a copy, then the presumption is the testator destroyed the Will and his estate will be distributed according to an older Will or the intestacy rules - which is probably the last thing you wanted to happen.
What Is the “Presumption of Destruction”?
The Court is required to assume that if a Will was last in the possession of the deceased and can’t be found, it was likely destroyed intentionally to revoke it. This is known as the presumption of destruction.
This is quite a difficult presumption to overcome - you need to able to adduce evidence to the Court’s satisfaction that the original Will was not in the testator’s possession. The case of Cahill v Rhodes [2002] NSWSC 561 established a five step test to for admitting a Will to probate:
Existence of a Will - There must be a document showing testamentary intent.
Revocation of prior Wills - The Will must state it revokes earlier ones.
Overcoming the presumption of destruction - Evidence must show the Will wasn’t destroyed intentionally.
Evidence of terms - The full contents of the Will must be known.
Due execution or intent - Either proper signing or clear intent to make it a Will.
In the Will of Nina Elizabeth Mary Greer [2022] QSC 136, the beneficiaries were able to satisfy the Court that the original Will was never in her possession—it was held by her solicitor. Evidence showed she only kept a copy and that the original was likely lost when the solicitor’s firm ceased business. That was enough to overcome the presumption.
In the Estate of Blyton [2023] NTSC 12, the testator died in nursing home, and only a copy of the Will was found in his belongings. The beneficiaries through a laborious tracing process were able to locate two clerks from the NT Public Trustee who had drafted the Will 21 years earlier, who testified they had delivered both the original and a copy to the Testator in his previous accommodation.
The Court formed the view that it would be very unlikely that if the testator has intended to destroy and revoke the Will that he would have destroyed only the original and kept a copy - and so the presumption of destruction was overcome and the copy was admitted to probate.
What You Should Be Thinking About
These cases highlight how fragile estate planning can be when documents go missing. Ask yourself:
Do you have a Will?
Do you know where it is?
Does it still reflect your wishes?
Does someone else know where it’s kept?
If your Will is lost and was last in your possession, the Court may presume you revoked it—even if that wasn’t your intention. That could mean an older Will takes effect, or worse, your estate is distributed under intestacy laws.
