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Re Ambrose [2019] QSC 3

What happens when the original will of a deceased is lost?

The question was asked in this case when the solicitor of the deceased presented the court with a photocopy of the will and requested a probate of the document. The solicitor was the sole executor of the deceased and believed that the will was destroyed after the renovations that occurred in his office in 2018.

LEGAL ISSUES

In order for the photocopy be accepted as a valid will, five steps had to be satisfied:

  1. That the will existed.
  2. That it nullified all previous wills.
  3. That if the will cannot be presented to the Court, it was destroyed with the intention of nullifying it.
  4. That the terms of the will can be identified.
  5. That the will was duly executed.

JUDICIAL FINDINGS

The Honourable Judge was satisfied that all the above five points were fulfilled in this case.

The will was presented in Court, and the first Clause of it revokes the validity of all previous wills. The third step was satisfied because the original will cannot be found, meaning it was destroyed with the purpose of making it void. The final two criteria were fulfilled by the presence of the photocopy.

DECISION

Probate was granted for the photocopy of the original will.

OUR COMMENT

One must be careful when dealing with original legal documents. However, there is a judicial process in place to assist if the original copy can no longer be located.