The Case of the Lost Will

Published 27 March 2020.

If you are a Beneficiary or the Executor under a Will, is all lost if the original Will cannot be found?

Under the Uniform Civil Procedure Rules when making an Application for a Grant of Probate, the Original Will must be provided to the Court with the Application. So what happens if the Original can’t be found?

It is unfortunately a common occurrence that a person goes to the effort of having a Will drawn by a Solicitor, only to find when they pass away the Will cannot be located. Fortunately, it is also a common occurrence that the Deceased will provide a copy of their Will to the Executor/s or the Beneficiaries of their Estate. Where a copy of the Original Will is available, all is not lost, so long as the Court can be convinced that a Grant of the Copy of the Will is the appropriate outcome in the matter.

In the recent decision of In the Will of Valerie Eve Robson [2020] QSC 52, our firm was successful in securing an Order of the Supreme Court that allowed for a Grant of Probate for the Copy of a Will. The Order was made where, the Application for a Grant of Probate for the Copy was allowed for under the Common Law, by way of the principle established in in Frizo v Frizo [2011] QSC 107. The principle requires that five separate matters must each be established before such an application will be successful. A far more complex process than Probating an Original Will, the Application requires all the relevant matters be placed before the Court, with often supplementary evidence having to be produced by numerous persons and the construction of the appropriate Legal argument which compliments the case.

In hindsight, it would have been better to keep the Original Will in a safe place, such as a Solicitor’s Safe Custody or with a Bank and such an Application can be avoided. If its too late for that and you need assistance with the Application for a Grant of Probate for a Copy of a Will, you can contact our office for assistance from Legal Practitioners who are experienced in the area. Please contact our firm and one our experienced Practitioners will provide assistance.

Author Joshua Woodall, Solicitor. Published on 27 March 2020.

Author’s details:

Mr Joshua Woodall                                    
B.Bus(MAN) (GU) LL.B (GU) GD.LP (ANU) 
Phone: 07 5351 1185

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