26 April 2016

Is Your Original Will Safe?

Kellie Keenan, Charlie Young
Kellie Keenan
Charlie Young

In the recent decision of In the Estate of Robert Edmonds [2016] SASC 41 the Supreme Court of South Australia determined that the deceased died ‘intestate’ (meaning, without a Will) in circumstances where he had a Will, but the original could not be found.

Robert Edmonds died in March 2016. A copy of a Will dated 1997 was located at his home by police officers, amongst a great volume of other personal paperwork.

The Will was prepared by Robert’s then solicitors and was originally held at their office on his behalf. However, the solicitor’s records showed that Robert collected the original Will from them in October 2010 and did not return it to them. At the same time, Robert also collected from them three other important original documents that they were holding on his behalf.

Despite an extensive search of Robert’s home and advertisements in bulletins and newspapers, the original version of the 1997 Will could not be found. However, the other three documents that Robert collected from his solicitors together with his Will in October 2010 were found.

Can a copy of a person’s Will be admitted to probate?

In some circumstances, a copy of a person’s Will can be admitted to probate, if the original version is lost. However, if an original Will is last traced to the possession of the owner and then cannot be found after their death, it is presumed to have been destroyed by him or her (with the intention of revoking it), unless there is sufficient evidence to rebut that presumption.

In this case, the Court determined that there was insufficient evidence to rebut the presumption that Robert had destroyed the Will (with the intention of revoking it) because:

  • there was no evidence that the original Will was in the possession of any other person after it was collected by Robert;
  • Robert retained the three other original documents that he collected from his solicitor on the same day that he collected the Will; and
  • he had a tendency to hoard papers and secure important documents (by having his solicitor or bank hold them for him).

Therefore, the Court could not conclude that the Will had been inadvertently lost or misplaced by Robert and instead, determined that the presumption of it having been destroyed by Robert must stand.

This means that a copy of Robert’s Will could not be admitted to Probate and Robert was deemed to have died without a Will.

This is an important reminder to ensure that your Will is stored safely and securely to ensure that it can be located at the time of your death. If your original Will cannot be located when you die, your wishes might not be carried out.

For more information or advice in relation to preparing a Will or making an application in relation to a lost Will, please contact a member of our team today.

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