The phone call comes at the worst possible time. A loved one has passed, and amid the grief, you uncover a frustrating reality: the original will, which names you as executor, has vanished. The safe is empty, the solicitor has no record, and all you have is a photocopy. What now?
If you’re in Victoria, take a deep breath. A missing will is a common problem, and while it creates legal hurdles, it doesn’t automatically mean your loved one’s final wishes are void. The Victorian legal system has a process for this, but it requires careful navigation and strong evidence.
This guide will walk you through the essential steps for dealing with a lost original will in Victoria. Whether you’re an executor, beneficiary, or just trying to be prepared, you’ll find the practical knowledge needed to honour the deceased’s intentions, even when the original document is gone.
The Legal Starting Point: A Presumption of Revocation
When an original will can’t be found, the Supreme Court of Victoria starts with a significant assumption: the deceased intentionally destroyed the will to revoke it. This is known as the “presumption of revocation.”
This presumption places the burden of proof squarely on you to convince the court otherwise. It’s not an arbitrary rule; it reflects the logical assumption that people often destroy a will when they want to cancel it. However, the law also recognises that wills can be lost, misplaced, or accidentally destroyed. Your challenge is to prove that the will’s absence is due to one of these reasons, not an intentional act by the deceased.
Under the Administration and Probate Act 1958 (Vic), the Supreme Court has the power to grant probate for a copy of a will, but only if you can meet a strict set of criteria.
The Three Pillars: What You Must Prove to the Court
To have a copy of a will accepted, you must build a strong case resting on three essential pillars.
1. The Copy is Authentic and the Original Was Valid
First, you must prove that the copy is a true and accurate representation of the original will. You also need to show that the original was executed correctly according to the Wills Act 1997 (Vic). This means it was:
- In writing.
- Signed by the testator (the will-maker).
- Witnessed by at least two people who were present at the same time and also signed.
The best evidence for this often comes from affidavits (sworn statements) from the solicitor who drafted the will and the original witnesses. A solicitor’s note that the copy was made immediately after the original was signed is particularly powerful. You may also need medical evidence to confirm the testator had the mental capacity to make a will at the time.
2. The Will Wasn’t Intentionally Destroyed
This is often the hardest part. You need to provide evidence to rebut the presumption that the testator destroyed the will on purpose. The strength of this presumption depends on where the will was last kept.
- If the will was last known to be with the testator, the presumption is strong.
- If it was held by a third party, like a solicitor, the presumption is weaker.
Evidence to support your case could include:
- Statements from the deceased expressing satisfaction with the will.
- A lack of any indication they wanted to change their arrangements.
- Evidence of a house fire, flood, or even a chaotic living situation where documents were likely to be accidentally lost or thrown out.
3. This Was the Final Will
Finally, you must satisfy the court that the missing will was the deceased’s last and final testamentary document. People often make several wills during their lifetime, with each new one revoking the last. You need to show that the missing will wasn’t replaced by a newer one. This is often proven by demonstrating that despite extensive searches, no later will has been found.
The Great Search: Proving You’ve Looked Everywhere
Before the court will even consider your application, you must demonstrate that you have conducted “proper and reasonable inquiries” to find the original. This is a high standard. Your affidavit must detail every step you’ve taken.
Where to Look:
- The Deceased’s Property: Conduct a thorough search of their home, car, and any other properties. Look in obvious places like filing cabinets and safes, but also check unusual spots—books, storage boxes, and digital files on their computer.
- Professional Services: Contact every solicitor, accountant, and financial advisor the deceased ever used. Law firms can close or merge, so you may need to contact the Law Institute of Victoria to track down old files.
- Institutions: Inquire with banks (for safe deposit boxes), State Trustees, and other trustee companies.
- Family and Friends: Formally ask all relatives, friends, and close associates if they have any knowledge of the will’s location.
- Public Notices: Consider placing advertisements in legal publications or local newspapers asking for information.
Navigating the Court Process
If your search is unsuccessful, your next step is a formal application to the Supreme Court of Victoria. This isn’t a standard probate application and requires specialised legal expertise.
Your solicitor (plug here for Hayton Kosky Lawyers) will prepare an originating motion and a comprehensive affidavit. This main affidavit, sworn by you as the executor, is the backbone of your case. It must detail:
- Your relationship with the deceased.
- Your knowledge of the will’s creation.
- The exhaustive searches you conducted.
- All evidence supporting the “three pillars.”
This will be supported by affidavits from the will’s witnesses, the drafting solicitor, and potentially medical experts. All documentary evidence, including the copy of the will itself and correspondence from your search, must be attached as exhibits.
If the court is satisfied, it will grant probate of the copy. This grant is usually limited, meaning that if the original will ever turns up, it must be brought before the court.
What Happens if the Application Fails?
If you cannot convince the court, the deceased will be considered to have died intestate (without a will). In this case, their estate is distributed according to a fixed formula set out in Victorian law. This hierarchy generally prioritises the spouse or domestic partner, then children, parents, and other relatives.
This statutory distribution can be vastly different from the deceased’s wishes, potentially disinheriting friends, charities, or specific family members who were named in the will.
Prevention is the Best Cure: Safeguarding Your Will
The best way to avoid this complex, expensive, and stressful process is to ensure your own will is securely stored and easily found.
- Professional Storage: The most secure option is to leave the original will with the solicitor who prepared it. They have secure facilities and robust record-keeping.
- Inform Your Executor: No matter where you store your will, make sure your executor knows its exact location and how to access it. Provide them with the contact details of your solicitor.
- Keep a Copy: Keep a photocopy of the signed will with your important papers, along with a note stating where the original is held.
- Regular Review: Review your will and its storage arrangements every few years, especially after significant life changes. When you make a new will, ensure all old copies are destroyed.
By taking these simple steps, you can save your loved ones from a world of uncertainty and legal complexity, ensuring your final wishes are honoured without a hitch.