If a Will has been made and the original cannot be found, to make an application for a grant of probate the executor can use a copy of the original Will. The application must include an affidavit that explains where the applicant obtained the copy, the efforts made to find the original will, their opinion on why the original is missing, and other relevant details.
If a solicitor was the last person to have the Will they must provide an affidavit that details their search efforts. The executor must also notify potential beneficiaries and receive their consent or provide evidence of having served notice before proceeding with the application.
If the evidence supports an order, for a lost or unavailable Will be admitted for probate. Young J set out the matters to be established when seeking probate of a lost Will in Curley v Duff [1985] 2 NSWLR 716
1 It must be proved that there was a Will.
2 The applicant must show that the Will revoked all previous Wills.
3 Rebuttal of the presumption of destruction of the Will by the testator.
4 There must be evidence of the Will’s terms.
5 There must be evidence of the Wills due execution.
Background
In The Estate of Robert Lindley Palfreyman [2024] TASSC 32 Robert Lindley Palfreyman, the testator, died on 13 August 2011. He is survived by
- Vicki Rayner, (the applicant), with whom the testator was in a significant relationship at the time of his death,
- his former wife from whom he was divorced in 1980, and
- Three adult children who were then aged 47, 46 and 23 years.
The applicant seeks an order to grant probate on a Will executed by the testator on 19 June 2003, evidenced by a copy annexed to her affidavit. The original Will was lost and not available. The evidence permits an inference that the Will is the last testamentary document executed by the testator before his death. It is rational on its face and was prepared by a solicitor.
Will Copy
The copy provided, a photocopy of the executed Will taken from the solicitor’s file, met the formal requirements for execution under s 8 of the Wills Act 2008. In particular, it appears to be signed by the testator in the presence of two witnesses, a solicitor and a secretary, who have each attested and signed the Will.
The Will appoints the applicant as executor and the sole beneficiary. Those with a relevant interest in the estate, particularly the testators children, have all been notified of the application and provided a statutory declarations that they do not wish to contest the order sought by the applicant.
Testamentary capacity
In those circumstances, the fact of due execution gives rise to a presumption that the testator possessed adequate testamentary capacity when they made the Will. Further, this is a case in which it would be appropriate not to require detailed proof of due execution concerning
“the production of a duly executed will, rational on its face”:
Blake v Knight [1843] 3 Curt 547, McFadyen v Bluett [2017] TASSC 72 at 39.
The testator possessed adequate testamentary capacity when he made the Will, the Will is the last valid testamentary disposition made by him, and the applicant had allowed all persons with a relevant interest to be heard.
Concerns to be addressed
However, the two issues to be addressed on the copy of the will the applicant provided before proceeding to probate are:
1) There seems to be a mistake in the attestation clause concerning the date of the Will, which states the evidence of the applicant establishes that the Will was executed “this 19th day of June Two thousand nine hundred and three”.
The Court concluded that the mistake was of no significance and was a typographical error not noticed by the testator or the witnesses at the time of execution.
“Lack of a date or inclusion of the wrong date cannot invalidate a will.”
Corbett v Newey and Ors [1998] Ch 58, Waite LJ
Accordingly, the error as to the date does not affect the Will’s validity nor the presumptions arising from its apparent due execution.
2) the original Will is not available. The Court accepted that the applicant collected the original Will from the solicitors who had prepared it on 27 March 2014.
The applicant produced the acknowledgement of receipt of this document retained by the solicitors and submitted that she had a “glimmer of a memory” of collecting the document.
Delay in probate application
The applicant did not apply for probate at the time. Recently, she was advised to apply for probate to sell her house. The house was owned jointly as tenants in common; the testator’s interest did not automatically pass to the applicant on his death but was part of his estate. When the applicant decided to apply for probate, she looked for the Will but could not find it.
Searches
The Court was satisfied that the applicant had conducted a thorough search, but it seems that the original Will had gone missing between the time she collected it from the solicitors and when she decided to apply for probate. The Court accepted the applicant’s submission that the original Will may have been inadvertently destroyed or lost during a “clearing up process”.
After realising that the original Will had been lost, the applicant obtained a certified copy of the executed document retained by the solicitors on their file. The applicant annexed that copy to her submitted affidavit.
Additionally, the applicant followed the Court’s suggestion to place an appropriate advertisement with the Law Society and make enquiries with the Public Trustee concerning the existence of a Will of the testator. Although the applicant has done this, the original Will was unlikely to be located because the applicant lost it in her home. However, the Court was comforted that the testator had not created a subsequent testamentary document.
Rebuttal of Presumption of destruction
It is apparent from the evidence the Court held that the establishment of all these matters, including the conclusive rebuttal of the presumption of destruction by the fact that the solicitor had the original Will well after the death of the testator and until its collection by the applicant in 2014.
Decision
The Court held that it is appropriate and in the interests of justice concerning the situation to grant probate. Accordingly, the copy of the Will annexed to the applicant’s affidavit sworn on 5 October 2022 is a true and correct copy of the deceased’s executed on 19 June 2003. The Will is unavailable because the applicant lost it following the testator’s death. The Court granted probate in solemn form of the copy of the Will.