Lost Wills and Other Matters to Consider After Signing Your Will

Signing your Will is an important first step to ensure your estate will be
distributed according to your wishes, but there are still some considerations for
you to keep in mind. This article addresses some of the matters of which you
should be aware after you sign your Will.
Safe Storage of Your Original Will
If you accidentally lose or misplace your original Will in circumstances where it
was last known to be in your possession, such that on your death it cannot be
found, there is a presumption that you destroyed it amino revocandi, that is,
with the intention of revoking it. Whilst your executor can apply for a grant of
probate of a copy of your Will (i.e. a grant ‘limited until the original or a more
authentic copy be brought into the registry’), as part of the application, your
executor would need to rebut this presumption by providing evidence that
satisfies the Court, on balance, that you either could not, or would not, have
revoked the Will.
The presumption will not be strong if your Will makes a careful and complete
disposition of the will-maker’s property, and there are no other circumstances
which point to a probable destruction of it with the intent to revoke it. In all
cases, it remains a question of fact whether the evidence rebuts the
presumption on the balance of probabilities. If there is insufficient evidence to
rebut the presumption to the satisfaction of the Court, the implications of this
may be that you die intestate (i.e. without a Will). An earlier Will of yours will
not be revived if the later, lost, Will is proven to have contained a revocation
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clause. This could result in your estate being administered in a way that you did
not intend.
The application for probate is more onerous on your executor if your original
Will cannot be found and a grant of probate is sought of a copy. It will be
necessary for your executor to establish three things in order for a copy to be
admitted to probate:
1. first, that the Will was properly executed, and that execution should be
dispensed with pursuant to section 8 of the Succession Act 2006 (NSW);
2. secondly, what the contents of the Will were; and
3. thirdly, if the circumstances raise the presumption that the Will was
revoked by destruction, that presumption must be rebutted.
Deliberate Destruction or Theft
If your Will is kept amongst your documents, it is susceptible to theft or
deliberate destruction by someone other than you. For example, if after your
death a family member is searching through your papers for your Will and upon
finding it realises that it is not to their favour, they could destroy it. Whilst this
is an offence punishable by seven years imprisonment, were this risk to
materialise, such that your Will was known to have been in your possession prior
to your death, but could not be found after your death, the presumption
referred to above would operate.
Accidental Destruction
If your Will is kept amongst your possessions, it is at risk of being accidentally
damaged, burnt, torn or otherwise mutilated or destroyed in some way. This
would not, of itself, be sufficient to revoke your Will because the relevant act of
destruction must be accompanied by an intention on your part to revoke your
If after your death your Will is found in your possession in a torn or mutilated
state, especially if your signature or those of the witnesses have been torn off
or scratched out such that they are illegible, then there will be a rebuttable
presumption that you destroyed the Will with the intent of revoking it. When
applying for probate, your executor will need to provide clear and satisfactory
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evidence in support of the application in order to rebut the presumption, for
example, by proving that it was torn or cut accidentally. There is no guarantee
that the Court will grant probate of your Will in such circumstances.
Unadvised Amendment
If you retain possession of the original Will, it is prone to unadvised amendments
by you. Alterations or obliterations are ineffective unless they are in accordance
with section 14 of the Succession Act 2006 (NSW). An alteration must be
properly executed in the manner in which a Will is required to be executed.
Pencil alterations are generally disregarded as being merely deliberative. For
obliterations to be effective, the obliterated words must no longer be apparent
on the face of the Will itself.
Accordingly, even the simplest changes must be done correctly or they may have
disastrous results. For example, your executor may have to make a costly
application to the Court to dispense with the formal requirements for
alterations. There is also the risk that any such amendments may cause
structural changes to your Will which may have unintended consequences.
It is vitally important that your Will be found easily and promptly after your
death. Accordingly, because of the above risks, it is not normally recommended
that you keep the original Will in your possession. A safe option is to instruct
your solicitor to hold the original in safe custody and obtain a copy from them
for you to keep with your private papers.
Right to Revoke Your Will
You may revoke your Will at any time. The prudent way to do this is by executing
a new Will, in compliance with the Will signing formalities, which contains a
revocation clause revoking the earlier Will.
Failure to observe the legal requirements for revoking a Will can have significant
consequences for your estate. It may create uncertainty as to the Will which is
to operate as the last Will, resulting in costly legal proceedings to determine that
issue. It may also result in your estate being administered in a way that you did
not intend, if, for example, the Will which you had purported to revoke is found
in all the circumstances not to have been revoked.
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Accordingly, if you wish to revoke your Will as part of your review process, or
for any other reason, it is better to seek legal advice in order to ensure that it is
done properly.
Involuntary Revocation – Marriage and Divorce
In the event of your marriage, you need to be aware that this will have the effect
of revoking your Will. An exception to this rule is if the Will was made in
contemplation of marriage, or if your Will provides for any gifts to the person to
whom you are married at the date of your death, which will not be revoked by
such marriage. Similarly, if you get divorced, this will have the effect of revoking
any gifts in favour of your former spouse, although the balance of the provisions
in the Will may be unaffected.
Inspection of Your Will
Whilst you are alive, your Will is a confidential document, and no one has a legal
right to inspect it without your consent. After your death, but before a grant of
probate is made of your Will, only a limited class of persons can seek to inspect
your Will. Once probate of your Will is granted, it becomes a publicly available
Reviewing Your Will
It is a good idea to review your Will every two years or whenever a major change
occurs in the tax law, your family situation or your assets – for example:
– You change your name or people named in your Will change their names;
– An executor dies or is unwilling or unable to act;
– A person dies who is to receive a gift under your Will;
– You no longer have or control property specifically described in your Will;
– If you marry, divorce, enter into a de facto relationship or have children;
– If you want to change or revoke part or the whole of your Will.
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RN LEGAL has assisted many clients with the delicate task of creating a will as
well as with respect to the abovementioned matters. RN LEGAL has the
experience, expertise and resources to help you write and safeguard your will.
Don’t leave the distribution of your estate and your family’s future to chance.
Contact us on (02) 9191 9293 or mail@rnlegal.org if you require legal advice in
relation to your will or estate matter