August 28, 2014

Many people go to a lot of trouble to prepare their legal will, but then don’t think about the difficulty that might arise in trying to locate the document after their death. In a recent case the Supreme Court had to consider an apparent photocopy of the will when the original couldn’t be located.

The deceased’s daughter made a thorough search of the home and all that could be located was a two page photocopied document under the bed in a cupboard with old photos. The deceased had a file in her linen press in which other important documents had been kept and there was no explanation as to why the photocopy was not kept in that file. Enquiries were made with the deceased’s bank and advertisements were placed in the Advertiser and with the Law Society but the original will couldn’t be found

When a will is missing, a copy may be relied upon if certain considerations are met namely:

  • The original will existed;
  • There is evidence of the terms of the original will;
  • The copy is an accurate and complete copy
  • Thorough searches have been conducted to find the will including publishing advertisements;
  • The original will revoked all pre-existing wills;
  • The circumstances surrounding the absence of the original will;
  • Anyone who is prejudiced by the application has consented;
  • The ‘presumption of revocation’ does not arise or has been rebutted.

In this particular case, the deceased’s daughter was an only child and therefore no other person would have been entitled to the estate, so no prejudice arose in respect of anyone else.

Notably, the Court was able to rely upon affidavits provided by the witnesses to the original will who were able to say that the document was an accurate copy of the original that they had witnessed.

Therefore, the only outstanding issue was whether the ‘presumption of revocation’ applied. What does that mean? This is a presumption that if a will was shown to have last been in possession of the deceased, but can’t be located on their death, it is presumed that the person destroyed the will. The Court must consider all of the facts together in drawing that inference, and if in the period between when the will was made and the person’s death nothing occurred to show that they had reason to revoke the will by destroying it then the presumption is weakened.

In this particular case the Supreme Court was satisfied that the photocopy was sufficient evidence of the deceased’s testamentary intentions and the document was admitted to probate.


A further difficulty that arose was the fact that the deceased had used a will kit and had made handwritten additions to the document. Under the heading “GIFTS” she had made a specific gift to the Port Adelaide Football Club of $1,000 but the box headed “RESIDUARY ESTATE” (meaning everything left after any specific gifts) was left blank. This meant that apart from giving $1,000 to the Football Club, nothing had been done about the rest of her estate valued at over half a million dollars! In addition, only one of the two pages had been properly signed by the testator and witnesses.

The result of this was that although the photocopy of the will was admitted to probate, it only dealt with $1,000 and gave rise to a partial intestacy as to the residual estate.

The costs and resources involved in seeking to rely upon the photocopy, including conducting a thorough search and advertising in an attempt to find the original along with legal costs would no doubt have been significant, with the end result of establishing that a Football Club was entitled to $1,000. Not only does this case demonstrate the need to take steps to ensure the safekeeping of your will and that it can be located when the need arises, but also the problems associated with preparing a will without the assistance of a lawyer. Websters Lawyers not only offer a cost-effective and professional service to prepare your will, but can also keep your will in safe storage for an annual fee of just $10 which ensures that there is a continuous record of where it is kept by way of yearly contact and correspondence.

In the Estate of Hogben [2014] SASC 91