What happens if only a photocopy of the Will can be located?

When someone dies leaving a Will, the Executors, more often than not, must apply to the Supreme Court of Victoria for a Grant of Probate of that Will in order the administer the Estate.  

The Court requires the original Will to be physically sighted by the Probate Office before Probate can be granted. This is to ensure that the Will is valid and signed correctly.

Even if Probate doesn’t need to be obtained, such as for small Estates with limited assets, the original Will is important as most organisations and assets-holders will require a certified copy of the original Will before assets can be released.

Therefore, locating the original Will is an integral part of the administration process.

So, what happens if you have done everything possible to locate the original Will with no luck?

In limited circumstances, the Court may allow for a photocopy of the Will to be admitted to Probate. However, these applications are more complicated. In addition to the standard court documents required for Probate, an application based upon a photocopy of the Will must include more documents and detailed explanations regarding the inability to locate the original Will and what this means. An application based upon the photocopy Will might include:

  • An Affidavit detailing the attempts to try and locate the original Will

  • An explanation in the Affidavit of Executor rebutting the presumption that the original will was destroyed by the willmaker in order to revoke it

  • An Affidavit by one or both of the witnesses to the original Will

  • Affected parties, such as beneficiaries, consenting to the photocopy Will being admitted to Probate

This all means that the time for obtaining Probate – and therefore the distribution of funds from the estate, will be delayed. Reasonable time must be spent by the Executors, family members and friends, and the Lawyer attempting to locate the original Will. There are other factors that might impact upon the application, such as the inability to locate witnesses or gather evidence as to why the willmaker did not intend to destroy the original Will.

If a photocopy Will is not accepted by the Court, the Estate will be administered under the Rules of Intestacy. The Rules of Intestacy is a strict statutory formula for the administration of deceased Estates and very often does not provide the desired outcome intended by the willmaker.

Consequently, it is extremely important that you store your original Will somewhere safe and ensure that your Executors are aware of its location. If not, it could result in delays, unnecessary legal costs and an Estate distribution contrary to your wishes.

EstatesOFRM LawyersO'Farrell Robertson McMahonintestate, will