What happens if you can’t find the original copy of the will or you don’t know whether it’s a case of a lost will or a destroyed will?

Will the court grant probate if the original will can’t be found?

A recent case explains how the court approaches a situation in which the original will has been lost or can’t be found.

The Case of the Lost Will

In the Estate of Frances Ponikvar (Deceased) [2016] SASC 95, an application for probate of the will was made even though the most recent will couldn’t be located.

The deceased) was born in Slovenia in 1924 and died in 2010 aged 86 years. She died a spinster without children or grandchildren.

The deceased had seven siblings, all of whom predeceased her, and 12 nieces and nephews who survived her. Of those 12 nieces and nephews, four of them were Australian residents.

At trial, there was evidence of the deceased having made two wills. The first on 4 May 1993 and the second on 16 February 2007.

Thorough searches of the deceased’s home did not discover the original 2007 will and the court was required to determine whether it was a case of a lost will (but still the deceased’s most recent wishes), or whether she’d destroyed it and the earlier 1993 will would instead stand.

lost will, original will, copy of a will, can't find the will, probateThe court examined the following factors:

The 1993 will was in the custody of the Public Trustee. The original of the 2007 will could not be found. A copy of the 2007 will was produced by the deceased’s solicitor, Ms Tanya Ryan, who drafted the 2007 will and witnessed its execution by the deceased.

The 1993 will appointed the deceased’s “dear friend” Joseph Sever to be her executor and bequeathed one-third of the residual estate to him. The remainder of the residue was bequeathed to twelve remaining relatives of the deceased, four of whom lived in Australia, five of whom lived in the United States, and the remainder of whom lived in Slovenia.

The 2007 will was made following the death of Mr Sever. The copy of that will appoints a nephew as the deceased’s executor and bequeaths the residue of her estate to be shared equally between three Australian relatives: Joze Ponikvar, Ivan Ponikvar and Janet Novak.

All of the twelve beneficiaries of the 1993 will consented to the probate of the 2007 will, even though it cut most of them out, except for one Australian relative, Sandra Novak.

The deceased’s estate has a net value in the vicinity of $436,000.

The judge wrote:

In my view, the evidence permits of three possibilities: first, that the deceased destroyed her will, second, that the deceased lost her will, and third, that the deceased concealed her will in a place that has not been located.

I am unable to find whether the deceased lost her will or concealed it in a place such that it cannot now be found… I am satisfied that if the deceased had deliberately destroyed the will she would have told one or more of the witnesses whose evidence was before the court. I find that she did not do so. The evidence of events that occurred subsequent to the deceased executing the original of the 2007 will does not reveal anything which shows that the deceased had any reason to revoke the will by destroying it. Even though the original of the 2007 will cannot be found, it is more likely than not that the reason for it being missing is something other than that the deceased destroyed it with the intention of revoking it. In these circumstances I consider the application should be allowed and an order made admitting to proof a copy of the will made by the deceased on 16 February 2007.

Justice Stanley agreed that the common law presumption that the original lost will of Frances Ponikvar had been destroyed by her had been rebutted. Justice Stanley found that it was unlikely that the Deceased had destroyed the original of the copy will and had not made a later will. The 2007 will was granted probate.

What Should You Do If You Cannot Find A Will?

lost will, original will, copy of a will, can't find the will, probateIf a will cannot be found after a thorough search, the first step to confirm is that it existed in the first place. Is it actually missing, or is there a chance that the individual never actually made one? You may need to find out if the deceased saw a lawyer or other professional, and whether they know of a will. If it is proven that there is indeed a will, the next concern will be whether the document has been lost, or if it may have been intentionally destroyed by someone connected to the deceased.

As evidenced by the case of the lost will, he court may consider a range of factors when dealing with a missing will, such as:

  • Is there evidence that the original will existed?
  • Was the will valid and made legally, or were there circumstances that impact its validity?
  • Were there any old wills that existed before this one?
  • Has the will been searched for thoroughly?
  • Is there an accurate copy of the original available?

After gathering all the relevant information, the court will then be able to make a decision regarding the missing will and what will happen to the deceased’s estate.

You Can Obtain Probate With A Copy of The Will

You can still obtain a grant of probate for a copy of the will if you can answer the following questions and the Supreme Court is satisfied with your responses:

1. Was there actually a will or a document which evidenced the deceased’s intentions?
2. Did the will revoke all previous wills?
3. Is there evidence to suggest that the will has been destroyed to revoke it?
4. Is there evidence of the terms of the will?
5. Is there evidence that the will was executed?

A lost will creates a costly and time-consuming problem for the executor and beneficiaries. The Supreme Court has the sole authority to grant probate in this circumstance. How can you avoid this lengthy process?

  • Make sure you have a will, that it’s professionally executed and stored safely.
  • Communicate with your loved ones so that they know where the will is located.

If you need help with your will or estate planning, or you’re not sure where to start, please contact us today. We offer a FREE, ten-minute phone consultation.