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Lost Will Solicitors - Destroyed - Disputed Probate - 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 lost will solicitor.

This thorny topic is one that consistently appears in probate courts and principally relates to dishonesty by potential beneficiaries who believe that they may have been excluded from a will. If the first person on the scheme after death finds a will in which they do not appear as a beneficiary, they may well destroy that will in the hope than an earlier will may take precedence or in the hope that the intestacy rules may include them as a beneficiary. There are many other equally difficult scenarios. If a will has been chewed by the dog was it an accident or did the testator give the will to the dog to tear up as an act of revocation? If the original has been lost or destroyed or spirited away by another disgruntled person can a copy takes its place and form the basis for a grant of probate or has the missing original been destroyed and removed by the testator as an act of revocation? All of these situations and many other vexed questions are dealt with by judges in the probate courts and in every case the end result and the final judgement depend on the overall evidence presented to the court by the claimants lost will solicitor who must, on balance of probability, prove the case in order to be awarded judgement in their favour.

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.

Revoked by Destruction or Accidental Damage

It is sometimes the case that an original will is found at the house of the deceased which is in pieces, having been torn up. This is generally sufficient to indicate that the will was revoked by destruction and any earlier will takes precedence or the intestacy rules will apply. Revocation by destruction must be carried out by the deceased or by another person on the direct instruction of the deceased. If the document that has been torn to pieces is only a copy and the original will, which may be lodged elsewhere, is intact then the original will takes precedence as it has not been destroyed. If an original will has been destroyed by accident, for example if the dog chews it, then it is not a revocation and a lost will solicitor may file a copy which usually suffices to prove the original will.

Simply Lost and Not Revoked

It may be that the original will has been lost in a house move by the testator or was lodged with a bank or a lawyer and has been lost or misplaced or that the document is lost in the post in transit to the probate registry and in those cases provided that there is sufficient evidence to show that the testator did not revoke the will by destruction then a copy of the lost will may be proved, upon authority from a judge in the Supreme Court and a grant of probate will be issued for the lost will. It must be said that judges do require very strong evidence to prove a copy of a lost will and there will always be the assumption that the lost will was destroyed and disposed of by the testator as an act of revocation.

Revoked by a Later Will

The most formal and sensible method of revoking a will is to execute a new will. Many testators who revoke a will by destruction without taking legal advice do not realise that an earlier valid will replace the destroyed will, which is not always their intention.

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

    Our specialist solicitors deal with contested wills on a no win no fee basis. For legal advice about missing wills and contentious probate, contact us today. Our solicitors will provide you with a no charge consultation about your case. To speak to one of our solicitors, just phone us on our helpline or complete the contact form. The consultation is confidential, and you are under no further obligations to use our services.

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