You may think that if a will is lost, that it no longer exists and cannot be used to distribute the estate of a loved one who has died. This is not correct.

Provided certain conditions are met, the court will admit to probate a will that has been reconstructed from the verbal evidence of someone to whom the will-maker has told the terms of the will.

The most interesting and high profile case of a lost will is that of Brett Whitely[1], the famous artist. He hand-wrote his will, had it signed by two independent witnesses then, taped it to the underside of a drawer in his kitchen.

After his death, Mr Whitely’s will could not be found anywhere, but Mr Whitely had shown his close friend his will and where he had hidden it. Mr Whitely had also spoken to a number of other people about the gifts that he had made in the will.  Those people included his daughter who lived in London.  Mr Whitely’s daughter could remember key parts of the will. Other witnesses were also able to tell the court about key parts of the will.

In the end, there was sufficient evidence for the court to reconstruct Mr Whitely’s will.

The Supreme Court of Queensland in Carey v. Carey[2] found a will that had been lost to be valid.

Elizabeth Carey had made the will in 1976.  The will had been kept with her lawyers.  Elizabeth died in 1989 leaving two children surviving.  Her son telephoned his mother’s lawyers not long after his mother’s death and asked what Elizabeth’s will said.  A secretary of the firm told him.  The children did nothing about administering the estate and after ten years the lawyers destroyed the will together with their file.

The court accepted the evidence that the son was able to give about the contents of the will.  This meant that, despite the will having been lost and no copy of it being available, the deceased’s estate was able to be distributed in accordance with the will.

So, if a loved one has passed away and you know that he or she left a will, but neither it nor a copy of it can be found, it is important to explore whether the will can be recreated.

There are a number of hoops you must jump through, but where there is sufficient evidence the court will reconstruct the will. Of course, an application to the court to recreate a will is expensive.

There are a few simple steps you can take to avoid confusion and unnecessary expense after you die.

You can:

• see a lawyer at Quinn & Scattini Lawyers to have your will properly prepared,
• ensure that your will is kept in a safe place, for example in a bank safe deposit or in Q&S’s safe custody, and
• tell your executors where the will is, and encourage them to see a lawyer at Q&S for guidance about administering the estate.

[1] Whitely v Clune (No. 2) The Estate of Brett Whitely [1993]  NSWSC 102594 (unreported)
[2] [2015] QSC 197

How We Can Help

Quinn & Scattini Lawyers have assisted countless clients to prepare and update their wills and estate planning documentation.

We also have proven experience in disputing wills and estates.

Our expert Wills & Estates Team is led by Russell Leneham, an Accredited Specialist in Succession Law (Wills and Estates), and our entire team consists of experienced wills and estates lawyers and paralegals.

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Get the best representation. Contact Quinn & Scattini Lawyers on 1800 999 529, email mail@rmold.newwebsite.live, or submit an enquiry below.

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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.