A ‘lost’ Will is not automatically a ‘revoked’ Will – lost vs revoked
A Will is valid until it is intentionally revoked by the Will-maker. The Will-maker must be of sound mind to revoke a Will. A person holding a POA for the Will-makers cannot destroy a Will. Or rather, a person holding your POA can not revoke your Will.
What happens if the Will cannot be found? What if you can only find a copy of the original Will? Being ‘lost’ is not the same as being ‘revoked’.
Was the Will lost? Was it:
- hidden to preserve it?
- misplaced either by the will-maker or somebody else?
- destroyed by mistake, such as in a house fire?
- destroyed without the Will-maker’s permission?
If the Will has been lost (rather than revoked) you seek to prove an unsigned copy or signed copy of the Will. Even a Will that was never signed can be potentially enforced by the Court. You need to prove to the Probate office:
- the unsigned copy of the Will is accurate
- the Will was validly signed and witnessed; and
- the Will was not intentionally destroyed by the Will-maker
If the Will was built at our law firm’s website at / then you can log back in and get an unsigned copy of the Will.
If there are no records, the executor faces the onerous task of retracing what happened to the signed Will and locating the witnesses.
The executor may also need to obtain consent from anyone who is adversely affected by the lost Will being approved. This is usually the deceased’s family who would receive the estate on intestacy.
But the Will was with the deceased
If the Will was last known to be with the Will-maker then it is presumed that the Will-maker intentionally destroyed the Will – thus revoking it. Therefore, as part of the process of proving the true copy of the Will, in the above case, you must establish that the original Will was held by someone other than the deceased. See Re Estate of Hall (Deceased)  SASC 117.
If you die without a Will then the intestacy rules apply. You get the power to make a Will from each State’s legislation. An older Will may prevail if the ‘latest’ now revoked Will was never valid in the first place.
Alternatively, if you make a valid new Will, this destroys the old Will. If you now destroy the new Will this does not magically allow the old Will to be operational again. In that case, you die intestate – without a Will.
Keep your Will safe
Keeping an original Will safe and secure is important. Also, let your executors, family or a trusted friend, know where it is stored.
Is the Will valid?
A second question: ‘is the Will valid in the first place?’
Bailey v Bailey (1924) 34 CLR 558 looks at what is a valid Will:
- The onus of proving that an instrument is the Will-maker’ last Will is with you, the party propounding it. “He who seeks must prove”.
- The court determines the Will’s validity on the balance of the whole of the evidence. The Court considers everything.
- You discharge the onus by establishing a ‘prima facie’ case. (‘Prima facie’ means based on the first impression; accepted as correct until proved otherwise.)
- How do you prove a prima facie case? The Court after hearing your testimony is satisfied the Will is the last Will of a free and capable will-maker.
- The Court considers the Will-maker’s mental capacity. It is about the mind, not about the body. A person of sound mind can sign their Will with the pen in their mouth or in their toes.
- How much evidence is sufficient for a valid Will?This depends on the circumstances of each case. Consider:
- the simplicity or complexity of the gifts (specific gifts are bad)
- rational or irrational provisions
- exclusion or non-exclusion of beneficiaries
- the exclusion of persons naturally having a claim upon the Will-maker’s estate (e.g. children, spouse, close relatives)
- the Will-maker’s extreme age and any sickness
- does any person have motive and opportunity? Does that person exercise undue influence? Does that person, or a related party take a substantial benefit under the Will?
- is there a doctor’s certificate stating the will-maker is of sound mind?
- Upon establishing a prima facie case of sound mind, memory and understanding, the onus of proof switches to the party challenging the Will.
- To displace a prima facie case of capacity and due signing, mere proof of serious illness is not sufficient. There must be clear evidence that undue influence was exercised, or that the illness of the will-maker so affected their mental faculties as to make them unable to validly dispose of their property.
- The opinion of the Will’s two witnesses as to the testamentary capacity is usually of little weight on the direct issue. Instead, the court decides the question of capacity. This is based on facts, not opinions. What the witnesses thought and what a doctor’s certificate states are useful. But it is a judge in a court of law that makes the call. This is as to whether the will-maker had the mental capacity to sign a Will.
- A legally prepared Will, such as a Will prepared by Legal Consolidated, carries greater weight.
- Where instructions for a Will are given some time before its signing, it is the capacity as at the date of giving the instructions that is most relevant.
Is the destruction of the Will valid?
A will-maker who lacks mental capacity no longer has the ability to revoke their Will. In contrast, a person, of sound mind who is not being coerced, can at any time revoke their Will. (This is possible, even though you are bound by a Contractual Mutual Will.)
If you are of unsound mind and tear up your Will then the Will is still valid. Try as you might, if you are of unsound mind, you can no longer:
- make a new Will
- destroy your old Will
Doctor’s certificate vs knowing what is in your Will
- You can be of sound mind.
- A person may not be able to prove your Will is unfair.
- But there is a third little known attack on your Will. “Do you understand how you are giving away your assets?”
This third attack on your Will is not about the will-maker’s testamentary capacity. It is not about whether your Will is ‘fair’ to persons who can challenge your Will. See here.
The question here is “does the Will-maker understand who is getting what in the Will?” You must know and approve of the contents of your Will. This is different from the question of the Will’s validity and your testamentary capacity.
Now, sure, especially with Divorce Protection Trusts, bankruptcy trusts and 3-Generation Testamentary Trusts you do not need to prove that the willmaker was capable of understanding every clause in the Will.
It is enough that the will-maker the main thrust of the gifting provisions. Leaving everything to each other and everything to the children when both of you are dead is straightforward. But leaving specific gifts and life estates adds complexity.
It never ceases to amaze me how junior lawyers tolerate specific gift clauses in Wills for jewellery, holiday homes and tools in the garage. A do not get me started on the stupidity of life estates and rights to reside.
The more complexity and ‘ruling from the grave’ clauses you put in the Will the higher the onus of proving that the Will-maker knew how the gifts would end up.
Consider Hoff v Atherton  WTLR 99
The greater the complexity of the gifts the higher the evidence required. With specific gift clauses, there is a higher level of understanding of the assets.
This is not about the Will-maker being of sound mind. This is a separate question. Did the Willmaker know and approve what is in the Will.
The Will maker may:
- have full mental capacity
- suffer from no undue influence
and still not be able to prove the Will because the specific gifts are too complex.
The court creates a Will for a disabled father
For more legal advice telephone us. We are a law firm. We can help you answer the questions.
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Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, Dip Ed, BArts(Hons), LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
Australia wide taxation and trust law firm
Mobile: 0477 796 959
National: 1800 141 612
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