What to do if the original will is missing in Victoria

Do not assume the will is lost, and do not assume it was revoked. Start a written search record immediately: who was asked, when, and what they said. That record often becomes evidence in an affidavit.

• The deceased's home, safe, filing cabinets, and papers moved during a relocation or aged-care admission.
• The law practice that prepared the will, and any practice that took over its files.
• Banks, trustee companies and other safe-custody holders.
• The Supreme Court, which may hold a will deposited for safekeeping.
• Accountants, financial advisers, attorneys under a power of attorney and close family.

Everything that shows the will's terms and how it was signed may matter. Collect and keep it in its existing condition.

• Signed or unsigned copies of the will, including photocopies and scans.
• Drafts and the lawyer's file notes, if available.
• Correspondence referring to the will or its whereabouts.
• Names and contact details of the witnesses.
• Statements the deceased made about the will, recorded with dates and who heard them.
• Evidence of where the deceased kept important documents.

The Court's unusual applications guidance states that, generally, where a person held their will but it cannot be found on their death, the Court will presume the testator destroyed it with the intention to revoke it. That reflects the principle that destroying a will with intention to revoke it is one of the ways a will may be revoked under the Wills Act 1997 (Vic).

The presumption is not conclusive. It can be rebutted by evidence, which may include evidence that the will was held by someone else, that it was lost in circumstances such as a move or a disaster, or that the deceased's statements and conduct were inconsistent with an intention to revoke. Whether the evidence is enough is for the Court to decide.

The Court's guidance explains that an application may be made to prove a copy of the will where the original has been lost, or destroyed without the testator's intention to revoke it. In such cases the original of the most authentic copy is filed with the Probate Office in place of the original will.

Where a witness has died or cannot be found, other evidence may be needed, and the Court's requirements depend on the case. The application is prepared through RedCrest-Probate like other applications, but with the additional affidavits. The general steps are in the how to apply guide and the documents in the application documents guide.

If the Court is not satisfied, the lost will does not operate. The estate then passes under any earlier will that remains effective or, if there is none, under the intestacy rules. The no valid will guide explains those alternatives, and the letters of administration guide covers intestacy.

Because the outcome can change who inherits, beneficiaries under different documents may have competing interests. Where that is so, independent advice for each party can be appropriate.

• Filing a standard application with a copy as if it were the original.
• Discarding drafts or earlier copies because they appear superseded.
• Delaying contact with witnesses, whose evidence may become harder to obtain.
• Assuming a copy will be admitted, or that the estate is intestate, before assessment.

The evidence about custody is often decisive for the approach taken. Try to establish when the will was signed, who took the original away after signing, whether it was later moved, and who last saw it. A law practice's safe-custody register, receipts for documents uplifted by the deceased, and correspondence can each help.

Because the Court's guidance requires an affidavit of due execution sworn or affirmed by the witnesses in all applications to prove a copy, contact the witnesses early. Their evidence typically covers who was present, the order of signing and whether the will-maker appeared to understand the document. Where a lawyer supervised the signing, that lawyer's file notes may assist the witness's recollection.

If a witness has died, cannot be found or cannot recall the signing, other evidence may be needed. What will satisfy the Court depends on the particular facts. Record the attempts made to contact each witness, as that record may itself be required.

A missing will can create uncertainty for everyone. Beneficiaries under the lost will, beneficiaries under an earlier will and people entitled on intestacy may each be affected by the outcome. Keep communications factual, avoid predicting the result and invite anyone with information about the will's whereabouts to come forward. Those enquiries can be recorded as part of the search evidence.

We can coordinate searches, gather evidence from witnesses and the drafting practice, assess the presumption of revocation and prepare the application to prove a copy. We do not predict the Court's decision, but we can make sure the evidence the Court's guidance describes is before it.

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