Conducting a search for a missing will
The search for a missing will is a critical step in estate administration. If a will existed but cannot be located after the testator's death, the presumption at law is that the testator destroyed it with the intention of revoking it (presumption of revocation by destruction). This presumption can be rebutted by evidence that the testator did not intend to revoke the will.
This is an 8-step workflow for conducting a search for a missing will in Australia. When a person dies and no will can be found, but there is reason to believe one was made, a systematic search is required before proceeding on the basis of intestacy. If the will cannot be found, the law presumes it was destroyed with the intention of revoking it.
Before you start
- Death certificate or evidence of the testator's death
- Information about the testator's solicitor history and personal records
- Details of any known previous wills or testamentary documents
- Access to the testator's home and personal effects for physical search
The workflow
Search the testator's personal effects
Conduct a thorough physical search of the deceased's home, including safes, filing cabinets, desks, and personal papers. Check for the original will, copies, or any correspondence referring to a will. Document the search process and findings.
Contact the testator's known solicitors
Contact any solicitors the testator is known to have used. Check whether the firm holds the original will in safe custody, or has records of preparing or witnessing a will. Include any previous solicitors, not just the most recent.
Conduct a law society will search
Lodge a will search request with the relevant state law society (e.g., the Law Society of NSW Will Search service). The law society circulates the search to member firms in the relevant area. This may locate wills held by solicitors unknown to the family.
Search the probate registry
Check the Supreme Court probate registry for any previously filed wills or caveats. In some jurisdictions, testators could deposit wills with the court. Also check whether any prior grant of probate exists for an earlier will.
Check financial institutions and safe deposit boxes
Contact the testator's banks and financial institutions to check for safe deposit boxes. If a safe deposit box exists, arrange access (which may require a court order if no executor has been appointed). Check whether any institution holds a will in safe custody.
Assess whether a copy can be admitted to probate
If the original will cannot be found but a copy exists, assess whether probate can be granted of the copy. The applicant must rebut the presumption of revocation by destruction — by showing the testator did not intend to revoke the will and the original was likely lost or accidentally destroyed.
Prepare the probate application
If a copy will is available, prepare a probate application seeking a grant in solemn form, with supporting affidavit evidence rebutting the presumption of revocation. If no will is found, prepare an application for letters of administration on intestacy.
Lodge the application and manage any challenges
File the probate application with the Supreme Court. If any person challenges the application (alleging the will was intentionally destroyed), prepare to meet that challenge with evidence of the testator's testamentary intentions. If the court is satisfied, it will grant probate of the copy or letters of administration.
What you will have at the end
Either the original will is located and the estate is administered accordingly, or probate is granted of a copy will (with the presumption of revocation rebutted), or letters of administration are granted on the basis of intestacy.
Common issues
- Not conducting a sufficiently thorough physical search before assuming the will is lost
- Failing to lodge a law society will search, which may locate wills held by unknown solicitors
- Insufficient evidence to rebut the presumption of revocation by destruction when only a copy exists
- Not checking for safe deposit boxes at financial institutions
- Family members destroying or concealing a will — which may constitute a criminal offence
Run this workflow on a real matter
Quillio helps identify the search steps required in each jurisdiction and researches the legal test for admitting a copy will to probate. See /practice-areas/estate-lawyers or start a free trial.
This workflow covers missing will searches in Australian jurisdictions. The presumption of revocation by destruction is a common law principle — the strength of evidence needed to rebut it varies by case. If there is any suspicion of fraud or will destruction, criminal advice may also be required.
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