The Lost Will

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When you draw up a Will, it is common for a law firm to hold the Will in their fire proof safe custody facility. Most firms will also record the Wills they hold on an internal register and/or a public database which can be searched in the event that someone dies and family members do not know the location of the Will. As the following case illustrates, following this simple process can prevent the consequences which arise from a lost Will.

Elizabeth Carey died on 15 August 1989, leaving two children named Patricia and Tony. She had made a Will with a firm of solicitors called Greenhow & Yeates on 8 November 1976, however, that Will was destroyed.

Tony remembered being told by a staff member of Greenhow & Yeates that according to the 1976 Will, he would receive one third of his mother’s house and Patricia would receive two thirds, with the residue to be divided equally between them. After Elizabeth’s death, the residue of her estate was distributed between Patricia and Tony, however, nothing was done to transfer the house.

Patricia later wanted to sell the house but was not able to do so because it was still registered in her mother’s name and probate had not issued. Tony disclaimed his role as executor of the estate and also disclaimed any interest in the remaining property of the estate. The question for the Court was whether probate should be granted based on Tony’s memory of the Will.

The Court has power to admit the terms of a lost Will to probate where it can be proved that:

  1. There was a Will in existence;
  2. The Will revoked all previous Wills;
  3. The presumption that it was not lost or destroyed by its maker has been overcome (this is known as ‘the presumption of revocation’);
  4. There is evidence of its terms; and
  5. There is evidence of due execution and compliance with legislation enabling a document to be admitted to probate.

Each of these requirements were met in this case. The Court was satisfied that a Will was prepared by a solicitor, entered into a Will register, placed into safe custody and kept until Elizabeth had died so that it existed after her death (meaning that the presumption of revocation did not apply). Based on evidence about the firm’s practice in the making of Wills, the Court was also able to assume that the Will would have revoked previous Wills, disposed of the whole of Elizabeth’s estate and have been duly executed. Finally, the terms of the Will could be proved through Tony’s memory. Accordingly, the Court admitted the lost Will to probate.

If you have a current Will which is not being stored in a safe custody facility, you might consider making arrangements to deposit it with a local law firm. If you do not have a Will or if your Will needs to be updated, please contact us to make an appointment for the preparation of a new Will. 

For more information

Carey v Carey [2015] QSC 197

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