In the recent decision of Re Wan (deceased) [2025] QSC 270, the Queensland Supreme Court allowed a photocopy of the deceased’s Will to be used by a wife to obtain grant of probate for the estate of her husband. However, it was not an easy process for the wife and her lawyers to accomplish.
The factors needed to prove whether a copy of a lost will can be used for a grant of probate are set out in two cases. The NSW decision Curley v Duff (1985) 2 NSWLR 716 and the Queensland decision Frizzo v Frizzo [2011] QSC 107.
Both provide five factors which must be proved before a copy of a lost will can be used for the grant of probate. These factors are:
- FACTOR ONE: You must establish that there was a physical Will created (Re Molloy [1969] 1 NSWR 400);
- FACTOR TWO: That the Will revoked all (if any) previously created Wills;
- FACTOR THREE: You must overcome the presumption that when a Will is lost or cannot be produced it is presumed that the Willmaker destroyed it with the intention of revoking the Will (Allan v Morrison [1900] AC 604);
- FACTOR FOUR: There must be evidence of what was written in the Will;
- FACTOR FIVE: There must be evidence that the Will was properly executed or there was intention to execute it. (Gair v Bowers (1909) 9 CLR 510).
In the Western Australian Court of Appeal matter of Larussa v Carr [2018] WASCA 127 there was not a favourable outcome.
The appeal sought to overturn the decision for Letters of Administration in favour of granting probate based on a copy of the lost will. The appeal was dismissed as the appellant was unable to overcome the presumption in factor three above.
In Larussa v Carr, the Court of Appeal agreed with the primary judgement. When the will was lost, or could not be produced, the presumption was the Willmaker had the intention to revoke it and in this case the presumption could not be rebutted.
If you have a copy of a lost will, you can overcome the barriers to obtain probate, but this is not a straightforward process. It relies on dependable evidence and can be risky to the administration of a deceased estate.
Concluding remarks
Re Wan (deceased) [2025] QSC 270 is a timely reminder that if you have misplaced your Will it is vital that you create a new Will.
A new Will guarantees your estate is distributed in accordance with your wishes. It may also save your family significant legal expenses and time when obtaining probate or trying to administer your estate.
If you are in this situation either having to prove a copy of a Will or needing to update your Will because you have lost your previous Will, please contact Lynn & Brown Lawyers on 08 9375 3411.
We will provide you with tailored legal assistance informed by decades of experience along with services delivered with great care.
Author: Bryce Blair and Myles Brown
