What is the presumption of revocation – when you cant find the original Will

After a Will maker dies, the executor of the Will is required to obtain a Grant of Probate from the Supreme Court of Victoria. This enables the executor to deal with and distribute the Will in accordance with the terms in the Will. In some instances the executor will have trouble locating the original Will of the deceased.

Before accepting that the original Will is totally lost, executors should take some steps to see if there is any chance in locating the original Will:

• Search through the deceased’s possessions;
• Search for a letter from a lawyer;
• Contact the deceased’s financial advisors, accountants, funeral home or any other professional who may have had access to the original Will;
• Contact deceased’s family and friends;
• Contact lawyers in the area; and
• Place an advertisement in local newspaper.

In some circumstances, even after taking the abovementioned steps, the executor may not be able to locate the original Will. Presumption of revocation is the legal principle that when an original will cannot be produced after death, it is presumed that the Will maker destroyed it with the intention of revoking the Will.

It is important to note that a copy of a Will is different to the original Will. An original Will is the actual document that the Will maker and the witnesses have signed. An original Will, in most cases, will have all pages stapled and be permanently bound, usually with tape down the spine that is very difficult to be undone. If the binding has been tampered with, it will often raise questions as to the validity of the document and whether it has been altered with or without the knowledge of the deceased.

While it is possible for this presumption to be rebutted, it is usually a difficult and often costly exercise. The onus or responsibility for doing so is on the person applying to the court and the burden of proof required is extremely high. The type of evidence will be unique to the circumstances of each matter. Ultimately, the success of such an application will be entirely dependent on the evidence produced to the Court.

Before making such an application to the Court, we suggest that you seek legal advice on the likelihood your application will be successful and to discuss any other steps that may be able to be taken before applying to the Court.

Ensuring you have your Will stored correctly will help avoid the presumption of revocation and the Will being stolen, destroyed or read by others. It is suggested that:

1. If your Will was completed by a lawyer, ask the lawyer to store the original Will as they usually store deeds at no charge;
2. Store your Will in a fireproof and waterproof safe and inform your executors where the Will is stored.

If you require any assistance with applying for a Grant of Probate, storing your original Will or any other information regarding the presumption of revocation please contact our office on 03 9707 1155 or admin@wslegal.com.au