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Did someone die?  You knew they had a will but you can’t find it? 

Before a court can make an order that a lost will is valid you must:

  1. Establish that there actually was a will (a letter enclosing, a copy etc);
  2. Establish that it cancelled all previous wills;
  3. Prove the contents of the will; and
  4. Find evidence that it was not intended to be destroyed (that is invalid). This includes;
    1. The person making the will (testator) was physically unable to destroy it;
    2. The testator did not have the care or possession of the document (maybe it was held at the solicitor’s office);
    3. Provide evidence to show the court where the will was on the last occasion (eg on the deceased’s bedside table) and other people had the opportunity to access the bedroom and the access to destroy the will;
    4. Evidence of conversations the testator had with people prior to their death; and
    5. It was destroyed accidentally without the intention that it not be used.

Where someone has made several wills and one of those wills is favourable to one and not another, it may be necessary to ask the court to accept a lost will.  This is not an easy process but if there is evidence that the will was in existence at some point it may be possible.

 

If you would like to discuss the above with our principal, Kym Chapman, please contact her on 0416102577.

Kym Chapman & Associates provide legal advice for Northern NSW and have offices based in Byron Bay and Cabarita.