When legal documents are kept in a person’s home it is surprisingly common for original documents to be misplaced, mistaken as being copies or simply lost. Estate administration takes this into account and there are avenues that can be pursued if all you have is a copy of a Will. In some instances, it can be more complicated, and therefore incur greater costs than administering an estate with an original Will.
What is the process to obtain probate with only a copy of the will?
The process varies slightly from state to state, however, we will explore the key common aspects of applying for a Grant of Probate with a copy of the Will.
The key differences involve the formalities and evidentiary burden imposed on the executor and are as follows:
- There is the need to obtain formal consent from anyone who would be adversely affected if Probate was to be granted over the copy of the Will. These people are not required to provide consent and can contest the Grant of Probate over the copy of the Will. The people who may be ‘adversely affected’ include:
- Anyone who would be entitled to the deceased’s estate had they died intestate; and
- Anyone who was a beneficiary in any previous Will.
- When applying for a Grant of Probate additional evidence needs to be submitted to the Court stating:
- The extent of the searches undertaken for the original Will, these searches must include evidence of searching the deceased’s personal papers and belongings, the deceased’s previous lawyers or lawyers in the deceased’s local area; the deceased’s banks, accountants, the Trustee and Guardian and the Supreme Court.
- Evidence that the deceased did not intend to revoke the Will, such evidence includes:
- Conversations that the deceased had regarding their testamentary intentions; and
- The extent to which the deceased’s circumstances had changed since the Will was made.
- The ‘original copy’ of the Will has to be submitted to the Court.
- A grant of Probate over a copy of the Will is known as a ‘Limited Grant’. This distinction has little practical effect but essentially, this means that the executor’s authority to administer the estate terminates if a more recent, original Will is found and ‘proved’ in Court.
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Copy of the will – a hypothetical scenario
Jean has never married nor had children. She has been quite a successful businesswoman and has amassed a small fortune over her lifetime.
In Jean’s later life, she devoted much of her time volunteering with the Blind Dog Society, a charity set up to care for and re-homing of blind dogs. In 1990, Jean made a Will gifting her entire estate to her parents. However, Jean’s elderly father passed away in 2008 and her mother in 2010.
In 2011, Jean contacted a solicitor friend to update her Will. She said that she had two brothers, one was well off and she did not like the other, whom she hadn’t spoke to for over 40 years. She wanted her estate to ‘go to a worthy charity so that she could do some good’. She executed a Will nominating her solicitor as her executor and gifting her whole estate to the Blind Dog Society.
Jean, had a reputation for being brutal in business and not trusting others to handle important paperwork and, against her solicitor’s advice, instructed him that she would store the original Will in her home. The solicitor kept a signed photocopy of the Will in Jean’s file.
In late 2020, Jean contacted her solicitor to advise him that she had been diagnosed with aggressive cancer. Jean said ‘My will is with all my papers, it is the same one that we did in 2011’. Luckily, the solicitor made a file note of this conversation.
Jean passed away 3 months later.
After funeral arrangements had been made, Jean’s solicitor went to her house to try and find the original will. Despite going through all of Jean’s paperwork, the solicitor managed only to find a photocopy of the original Will.
All future searches of Jean’s personal papers, banks, accountant, the Supreme Court and NSW Trustee and Guardian fail to produce the original Will and the solicitor proceeds to apply to the Court for a Grant of Probate over a copy of the Will.
The solicitor obtains consent to apply for a Grant of Probate over a copy of the Will from Jean’s well-off brother but has to hire a private investigator to find her other brother. After 6 months of searching, contact is made with Jean’s other brother, who refuses to provide his consent. He is then served with a notice that an application for probate over the copy of the Will is being lodged. Fortunately, he does not contest the application.
The Court gives weight to the conversation that Jean had with the solicitor 3 months before her death and eventually Probate is granted over the copy of the Will.
This surprisingly common hypothetical scenario is an important reminder to ensure that original estate planning documents are secure and accessible. Failure to do so, will lead to significant delays in administering the estate, additional costs and the potential for the application for a Grant of Probate to be challenged.
Safeguards
It is advisable that you keep your original Will, other estate planning documents with your lawyer, in their safe custody facility. This has the added benefit of not only being secure, but also ensuring that your documents are not stolen or forged.
If you decide to keep your documents elsewhere, ensure that they are in a safe, secure and accessible location.
Wherever your documents are stored, make sure that you inform your next of kin, whether they be your children, executors or spouse of the original documents’ location and with copies of your documents.
If you require advice in relation to the administration of an estate where the original Will cannot be found, please do not hesitate to contact our experienced Will Dispute Lawyers Gold Coast at ROC legal.
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