There is a presumption that where an original Will of a Will maker cannot be located or is presumed lost or destroyed, it was the intention of the deceased person that the lost Will no longer reflected their wishes as their last Will and Testament. However, if you find yourself in a situation such as this, all is not lost.
The Administration Act has a specific part which deals with informal Wills and the additional evidence that must be adduced to satisfy the Supreme Court that the deceased person intended a lost document to be their Last Will and Testament. Below are some of the additional requirements to prove an informal Will.
When the Court considers a document being produced as the deceased’s Last Will and Testament, and this document is not the original Will, there are additional matters which must be clearly established and proven to the Court before the Court will be able to find that the document is in fact an accurate reflection of the deceased’s Last Will and Testament.
Matters which must be addressed are as follows:
- That the deceased did make a Will.
- That the Will made revoked all previous Wills.
- That the Will was not destroyed by the testator (ie the Will maker).
- There must be clear evidence as to what the terms of the Will were.
- There must be evidence that the Will was executed in accordance with the Wills Act or other evidence that supports that the deceased intended the document to be their last Will.
If you have a copy of the deceased’s last Will, this will often satisfy items 1, 2 and 4 above. Additionally, if there are details as to the witnesses on the Will, this may assist in satisfying item 5.
Item 5 can be further satisfied by affidavits of due execution being produced by all witnesses. This would involve contacting the witnesses and providing them with an affidavit that sets out that they signed a Will of the deceased, the date on which they signed and who was present, being themselves, the other witness and the deceased person.
Item 3 is often the most difficult to satisfy and will often be determined by the facts of a particular situation however where a Will maker may have a copy of the Will or documentation confirming that the Will was stored in another place or with the lawyer who prepared the Will it may be sufficient if enquires are completed to confirm that those persons do not have the Will or don’t have a record of the Will maker requesting it at a later date. Additionally if the Will maker has discussed making a Will and the terms of it with other persons, evidence from those persons on affidavit will assist in an application that the deceased person had intended the document, although now lost, to be their last Will and testament.
If you have a document that you believe to be the last Will and Testament of a deceased friend or relative, if your Will needs updating, or if you want to discuss any estate planning matters please contact Lynn and Brown Lawyers to discuss with one of our estate lawyers.
About the author:
Alyce Martin is a Perth Lawyer and an associate at Lynn & Brown Lawyers. Alyce is an experienced lawyer in the areas of commercial law and probate & Wills.