If an original Will cannot be found after death, the law presumes the Will maker destroyed the Will with the intention of revoking it. This presumption may be rebutted where evidence supports the admission of a copy to probate.
Courts have identified several categories of persuasive evidence:
- contemporaneous solicitor records confirming the Will’s existence,
- statements from impartial witnesses regarding the testator’s intentions,
- evidence that the Will was accidentally lost or misplaced,
- proof that the Will was kept in a secure location outside the testator’s control, and
- Consistent references torhe Will by the Will maker after its alleged destruction.
Rebuttal of Presumption
To rebut the presumption, practitioners should collect relevant evidence by:
- identifying and interviewing witnesses with knowledge of the Will maker’s intentions or the Will’s location;
- obtaining contemporaneous solicitor records and deed registers;
- locating correspondence or documents referring to the Will; and
- gathering other objective supporting material
Evidence should be organised clearly, with detailed affidavits prepared for submission to the Court.
Persuasive evidence includes:
- detailed contemporaneous solicitor records,
- independent testimony from disinterested witnesses, and
- objective documents corroborating existence or ongoing reference to its terms.
Unsupported assertions, evidence from interested parties alone, or vague explanations for the Will’s disappearance are generally insufficient.
Grant of Representation
A Grant of Representation is a legal document from the Supreme Court of Victoria that authorises the executor or administrator to manage the deceased’s assets, confirming their right to collect and distribute estate assets like money in bank accounts, property, and paying debts. The court’s role includes deciding on the validity of a Will, appointing executors or administrators, and overseeing estate administration.
If there’s a Will challenge, the executor must wait for a court resolution. The court can also modify or correct Wills. There are four types of grants:
- Probate (for valid Wills with appointed executors),
- Letters of Administration with the Will attached (named executor is unable or unwilling to act),
- Letters of Administration (no Will or invalid Will), and
- Limited Grants (for specific estate purposes).
In Victoria, applications for grants of representation require completion of Probate forms and submission to the Probate Office.
However, if a grant of representation is given to the legal personal representative in relation to a Will:
a) that has been revoked by the Will maker during their lifetime (either accidentally or intentionally);
b) not executed by the Will maker;
c) not intended by the deceased to be their Will;
d) made by the Will maker under undue influence; or
e) where the Will maker lacked testamentary capacity
Order 11 of the Supreme Court (Administration and Probate Rules) 2014 (Vic) sets out the procedure for applying to have a grant of representation revoked.
Copy of a Will
The procedural steps for applying to admit a copy of a Will in Victoria generally include:
1. Obtaining a certified copy of the Will or the best available copy.
2. Gathering all supporting evidence as outlined above, including statements from witnesses and relevant record .
3. Preparing an affidavit by the applicant setting out the facts concerning the loss of the original Will, the circumstances of its custody, and the supporting evidence for rebutting the presumption of revocatio .
4. Filing an application with the Supreme Court to admit the copy Will to probate, attaching the necessary affidavits and supporting documents.
5. Serving notice of the application on interested parties, including beneficiaries and potential intestate beneficiaries.
6. Responding to any requisitions or requests for further information from the Court probate office.
7. Attending a hearing if required, to address any factual or legal issues in dispute.
8. If successful, obtaining a grant of probate based on a copy of the Will.
Animo Revocandi
In contested probate proceedings, courts balance legal presumptions against the available evidence. Where a Will was last in the Will maker’s possession but is missing at death, Australian Courts apply the presumption of intentional revocation (animo revocandi). This presumption is not conclusive and may be displaced if evidence establishes the Will was lost, misplaced, or destroyed for reasons other than revocation.
If the original Will is unavailable, probate may be granted on a copy if the applicant establishes:
- the Will’s existence,
- due execution,
- revocation of earlier wills, and
- rebuts the presumption of revocation.
The Court, in its inherent jurisdiction, provides that applications to admit a copy of a missing Will or to revoke a prior grant of representation commonly permit revocation of a grant obtained on incorrect facts or where later events prevent proper administration.
Lost Wills
In Cahill v Rhodes, [2002] NSWSC 561 at [55], Campbell J said that for a “lost” will be admitted to probate, the plaintiff must establish the following five matters:
“First, it must be established that there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous Wills, third, the presumption that when a Will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her will.”
Campbell J, relying on Sugden v Lord St Leonards (1876) LR 1 PD 154, further observed that if a Will carefully disposes of the testator’s estate and no circumstances between its execution and the testator’s death indicate an intention to revoke it, the presumption of revocation weakens significantly and may be displaced: at [68]; illustrating how the presumption can be overcome when, on the balance of probabilities, the evidence suggests that the Will’s loss is due to reasons other than deliberate destruction by the testator.
Lost Wills and the Presumption of Revocation
In Re Ioannidis: Gebert v Sarvos [2025] VSC 418 considered a missing Will in the estate of Alexandros Ioannidis (the deceased), who died in 2021, leaving three children: Nicholas, Mary (the plaintiff), and Thomas (the defendant), who had been estranged from the deceased for many years. The deceased’s 2002 Will excluded the defendant, leaving him only a token amount. The plaintiff located a faxed copy of the 2002 Will and sought to have it admitted to probate as the final Will.
The plaintiff bore the burden of rebutting the presumption that the deceased destroyed the Will. The defendant contended the Will had been destroyed. If the presumption were not rebutted, the defendant would have inherited an equal one-third share of the estate under intestacy.
Daly AsJ found it unlikely that a testator intending to disinherit a child would deliberately destroy the 2002 Will, as this would result in the defendant inheriting an equal share. Her Honour considered the 2002 Will reflected mature deliberation rather than a decision made in haste or that silence during a deathbed video call was not given weight due to the deceased’s age and medical condition. Daly AsJ concluded it was more likely the will was lost than destroyed.
Court’s Inherent Jurisdiction
The Court’s inherent jurisdiction permits revocation of grants of representation where appropriate. Establishing a copy Will and rebutting the presumption of intentional revocation require careful assessment of the surrounding circumstances, including the Will maker’s custody of the Will, the dispositive provisions, and the broader factual context.
In Nikolaou v State Trustees Limited [2026] VSCA 153, the applicant sought leave to appeal in the Victorian Court of Appeal on two principal grounds:
- Incorrect facts or fraud: the applicant submitted that the original grant of administration was obtained on the basis of false statements or inaccurate information and that, had the court been aware of the true position, it would have reached a different decision.
- Discovery of a later Will: additionally a more recent Will had come to light after the grant of administration, warranting reconsideration of the grant.
Both grounds ultimately challenged Irving AsJ’s finding that the applicant had failed to overcome the legal presumption that the original Will had been destroyed by the deceased with the intention of revoking it.
His Honour considered the written submissions filed by both the applicant and the plaintiff. In doing so, Irving AsJ observed that the applicant’s submissions appeared to have been prepared with the assistance of artificial intelligence, noting the inclusion of several citations to authorities that either did not exist or were irrelevant to the issues before the Court.
Irving AsJ acknowledged that AI can be a useful drafting tool, but emphasised that litigants remain responsible for ensuring the accuracy, relevance and reliability of everything filed in court. AI-generated content may contain errors, bias or misleading information, and cannot be relied upon to produce persuasive legal submissions without careful human verification. In Re Nikolao, his Honour found that the applicant’s written submissions failed to engage meaningfully with the real issues arising on the appeal.
- A party seeking to prove a lost will must rebut the presumption that the missing original was destroyed by the deceased with intent to revoke.
- Litigants who use artificial intelligence to prepare court documents remain responsible for the accuracy and legal soundness of their submissions.
- Verification of each citation and argument is required as a matter of best practice.
- Practitioners must cross-check references against primary sources or authoritative databases to meet professional obligations.
- Where generative AI has been used in preparing any part of a court document, disclosure is required in accordance with current court practice notes, together with certification that all legal authorities cited have been checked against a primary source.
Disclosure and certification are typically made in the covering letter or a formal note within the document, as required by courts such as the Federal Court of Australia and several state Supreme Courts.
Sample wording should be adapted to meet the requirements of the courts practice note.
Documentation by Practitioners of verification steps, including maintaining a checklist, file note, or similar record detailing the sources consulted and the results of each step. Providing an audit trail and reducing risk in the event of a challenge.
In Nikolaou v State Trustees Limited [2026] VSCA 153, Richards JA refused leave to appeal from Irving AsJ’s decision to dismiss an application to revoke a grant of letters of administration in Re Nikolaou [2025] VSC 640. The application was based on a photocopy of a Will that could not be located in its original form.
Background
Ioannis (John) Nikolaou (the deceased) died in August 2005, survived by his wife, Sofia, and three adult children. Letters of administration of the deceased estate that was administered for almost two decades on the basis that the deceased had died intestate. The principal asset of the deceased’s estate was a commercial property in Altona North. Under the operation of the applicable intestacy provisions contained in s 51 of the Administration and Probate Act 1958 (Vic) (Act), Sofia is entitled to the personal chattels of the deceased; a legacy payment of $100,000 plus interest; and one third of the balance of the Estate. The deceased’s children are each entitled to an equal share of the Estate’s balance.
Sofia was removed as administrator in 2022 following a decline in her health and cognitive capacity, and was replaced by her son, Terry Nikolaou. In December 2023, AsJ Barrett in Sofia Nikolaou (who brings these proceedings by her administrator, State Trustees Limited) vs Eleftherios (Terry) Nikolaou (as the administrator of the estate of Iaonnis Nikolaou, deceased) (Supreme Court of Victoria, S ECI 2023 01749, 22 December 2023) replaced the applicant with the respondent. The estate remained undistributed for almost eighteen years, with administration proceeding under intestacy.
Discovery of a Copy Will
In Re Nikolaou [2025] VSC 640, the applicant sought to revoke the grant of letters of administration, relying on a photocopy of a Will executed in October 1990. The original Will could not be found: the applicant and the plaintiff agreed that the 1990 Will:
- had existed;
- had been duly executed;
- revoked all earlier wills; and
- photocopy accurately reproduced the original document.
The application to admit the copy was directly consequential. A grant of probate of the 1990 Will would have altered the estate’s entitlement, resulting in the applicant receiving the Altona North property instead of a share of the Estate under intestacy.
The Presumption of Revocation
The law presumes that where an original Will was last known to be in the Will maker’s possession but cannot be found following their death, that the Will maker destroyed it with the intention of revoking it (animo revocardi). That presumption is the central issue to be rebutted by the applicant with a copy of the Will. The admission of a copy Will determines whether the existing grant can be set aside. In Re Nikolaou [2025] VSC 640, Irving AJ accepted the Will maker’s solicitors evidence confirming the Will’s authenticity and possession of the original. However, this evidence did not address the Will’s whereabouts after leaving the solicitor’s office and did not rebut the presumption.
Why the Evidence Failed
The applicant alleged that following the death of the deceased, he and his mother delivered the original Will to another solicitor, who made a photocopy of the document, refused to apply for probate, and destroyed the Will. Irving AsJ preferred the evidence of the solicitor, who denied receiving or destroying the original Will. The absence of any record in the solicitors’ deed register supported that the applicant had not rebutted the presumption.
The Court also identified several inconsistencies in the evidence, including:
- the applicant’s claim that he searched for the original will years after alleging that it had already been destroyed;
- the applicant’s inability to explain the acceptance of the appointment as administrator in 2022 if they had always believed the 1990 Will remained effective;
- the unexplained absence of the named executor from the relevant discussions; and
- the failure to call that executor as a witness, giving rise to an adverse inference.
Irving AsJ concluded that the applicant had not rebutted the presumption of revocation. The photocopy was insufficient to displace the existing grant of letters of administration.
Richards JA agreed with Irving AsJ’s reasoning. Her Honour concluded that the proposed appeal had no prospects of success and refused leave to appear as “totally without merit” under s 14D(3) of the Supreme Court Act 1986 (Vic), as the credibility findings were not shown to be wrong and the missing-Will conclusion remained intact.
Judicial Guidance on Use of Artificial Intelligence
Her Honour observed that the applicant’s written submissions appeared to have been prepared using AI. The submissions included citations to authorities that were irrelevant or nonexistent. The Court acknowledged that AI may assist in preparing submissons. However, this assistance does not lessen the obligation to verify all material filed with the Court. The duty of accuracy remains with the user.
The judgment reinforces three important principles:
- AI systems can generate inaccurate, misleading or fabricated legal authorities.
- Court users must independently verify the accuracy and relevance of every citation and legal proposition, because AI systems can generate inaccurate, misleading or fabricated legal authorities.
- AI may assist legal reasoning but does not replace the legal analysis required to address the issues in dispute, so users must still supply that analysis themselves.
These observations reflect the increasing emphasis in Australian Courts on responsible use of generative AI and are consistent with emerging practice directions for AI-assisted legal work.
Practical considerations for probate practitioners.
Where an original Will cannot be located, practitioners must establish its prior existence and address the reason for its absence. The central issue is whether the presumption of intentional revocation can be rebutted, which depends on the surrounding evidence. Courts have found the following types of evidence persuasive:
– Contemporaneous solicitor records, including detailed notes, execution records, and deed register entries
– Independent witness evidence concerning the Will maker’s intentions or the Will’s custody.
Unsupported assertions, uncorroborated evidence from interested parties, or vague explanations of the Will’s disappearance are generally not persuasive. Prioritise Objective documentary evidence and credible third-party testimony over speculative or inconsistent accounts.
Where only partial or conflicting evidence is available, identification and acknowledgement by practitioners of any gaps or inconsistencies, explanation of efforts to obtain stronger evidence, and provision of any corroborating circumstances from the available material assist the Court in determining whether the totality of the evidence is sufficient to rebut the presumption of revocation. Transparent presentation of evidence and direct acknowledgment of weaknesses help establish credibility.
Generative AI
Practitioners who use generative AI to draft submissions or court documents remain responsible for the content filed. Verification, legal analysis, and accuracy of cited authorities remain the responsibility of the practitioner or self-represented litigant signing the document. Technology does not alter these obligations. Australian courts and professional bodies have issued guidance for the responsible use of AI in legal work. The Federal Court of Australia and several state Supreme Courts require disclosure of the use of generative AI and certification that all legal authorities cited have been verified against primary sources.
SC GEN 25 – The use of Artificial Intelligence by Court users
The Supreme Court of Victoria’s AI Practice Note, SC GEN 25 – The Use of Artificial Intelligence by Court Users, sets out the formal rules for using AI in legal matters. Effective 14 May 2026, it mandates rigorous human oversight and verification to ensure that all AI-generated content is accurate, legally sound, and properly vetted.
Key directives of the Practice Note include:
- Strict Verification Requirements: Court users must fact-check and verify all AI-generated text, legal references, and citations. Court users cannot use one AI tool to verify the output of another.
- Witness Statements & Affidavits: Documents intended to reflect a witness’s personal knowledge and words must not be generated using AI.
- Expert Evidence: Expert witnesses who rely on AI to prepare reports must comply with the relevant Expert Witness Code of Conduct, which requires disclosure of AI use and identification of potential biases.
- Accountability: Practitioners and self-represented litigants bear full responsibility for all documents submitted to the Court, regardless of whether AI tools were used in their drafting. Relying on unverified or inaccurate AI outputs can result in sanctions or costs orders.
The Practice Note is underpinned by the eight principles formulated by the Victorian Law Reform Commission, which cover access to justice, privacy and data security, and procedural fairness. The full details are set out in the official SC Gen 25 Practice Note.
Practitioners should review and comply with the most current practice notes and guidance from the relevant court or professional body. These documents, available on court websites, set out requirements for disclosure and certification and are regularly updated. Practitioners should consult these sources to ensure compliance with all obligations. The judgment reinforces three principles:
– AI systems can generate inaccurate, misleading or fabricated legal authorities
– Court users must independently verify the accuracy and relevance of every citation and legal proposition
– AI may assist legal reasoning but does not replace the legal analysis required to address the issues in dispute
Conclusion
Applications involving lost Wills and copy Wills require courts to balance established legal presumptions against the totality of the available evidence. The authorities demonstrate that success rarely depends on a single piece of evidence; rather, it turns on whether contemporaneous records, independent witness testimony and surrounding circumstances collectively establish, on the balance of probabilities, that the original Will was not intentionally revoked.
Nikolaou v State Trustees Limited [2026] VSCA 153 and Re Nikolaou [2025] VSC 640 reaffirm that practitioners should prioritise objective documentary evidence, address evidentiary weaknesses candidly and present a coherent factual narrative when seeking to rebut the presumption of animo revocandi or revoke an earlier grant of representation. Unsupported assertions and inconsistent evidence are unlikely to satisfy the Court.
Equally significant are the courts’ observations concerning generative artificial intelligence. AI is a valuable research and drafting tool, but it does not diminish the practitioner’s professional obligations. Every authority, factual proposition and legal submission must be independently verified and supported by proper legal analysis. Responsible use of AI requires transparency, human oversight and adherence to applicable court practice notes.
Ultimately, these decisions reinforce an enduring principle of probate practice: technology can assist legal work, but careful evidence gathering, rigorous verification and sound professional judgment remain the foundations of successful estate litigation.