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Revoked Missing Lost Will - Probate Solicitors - Australia Law

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A testator usually names an individual to serve as the executor of their estate. Before the proposed executor can begin performing their duties, they must obtain a Grant of Probate. One of the requirements for receiving the Grant of Probate is that the proposed executor provides the original will. But what happens in the case of a lost or destroyed will. The proposed executor can proceed by trying to prove the validity of a copy of the destroyed or lost will which usually requires the assistance of a solicitor.

Lost or Deliberately Revoked?

Wills get lost for any number of reasons, and it's not an uncommon situation. In some cases, for instance, the deceased stored it in a safe deposit box and failed to mention it to their family and when its not found but a copy is, its assumed to be a lost will. The most problematic reason for a lost will scenario is the possibility that it was intentionally destroyed by the testator. One valid way to revoke a will is for the testator to deliberately physically destroy it with the intention of revocation. For example, the testator might tear up or burn the document.

Validating an Earlier Will

The possibility of intentional destruction is a complex matter in and of itself, but it grows even more complicated when the testator had an earlier will. The problem arises when a beneficiary of the earlier will argues that the earlier will and not the missing will, should be valid. Perhaps this individual was included in the earlier will but left out of the missing will. Or the earlier will may have left the individual a larger inheritance. If this is the case, then the beneficiary is going to argue that the will in question was not a lost will but was rather intentionally destroyed and revoked by the testator.

Proving a Copy

Proving a copy of a lost will is difficult. Establishing the intentions of a deceased person is a large obstacle to overcome. Whether or not the copy is being challenged, the proposed executor can benefit greatly from the assistance of a qualified wills and probate solicitor. A testamentary solicitor can help gather the evidence necessary to prove that the a genuine lost will situation exists and that the document was not intentionally destroyed. For the average person, taking on the role of executor is overwhelming and, at times, confusing. That is why many executors turn to a solicitor to help ease this burden.

Valid Will?

It sometimes happens that a lost will eventually resurfaces. However, this does not mean that the executor will be free from challenges to the will's validity. The law sets forth stringent requirements for a valid will, providing solicitors with fertile grounds for bringing a legal action. If a will fails to meet even one of the requirements outlined below, the entire document is invalid :-

  • The testator must be 18 years or older at the time of making the will.
  • The testator must be free from undue influence.
  • The testator must be of sound mind.
  • The testator must fully understand the meaning of the document.
  • If either witness is also a beneficiary, they lose their inheritance.
  • The will must make adequate provisions for the testator's dependants.
  • The will must be signed by two witnesses who observed the testator signing the will.
  • Solicitors Legal Advice

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