Oops! I lost my Will – Lost wills and other things to think about after you sign your Will

This article was originally published in the LexisNexis Retirement & Estate Planning Bulletin, pages 92 - 95, April 2020

So, you’ve just signed your Will.  It’s a weight off the shoulders.  Now you can put it in a proverbial box in your mind and forget about it, right?  Well, whilst the Will signing process may be complete, there are still some considerations for you to keep in mind.  In this article, we address some of the matters of which you ought to be aware after you sign your Will.

Storage of your original Will

Your Will is yours to keep where you want.  However, you should think twice before deciding to keep the original Will in your possession.  There are some risks of which you ought to take note before deciding to take your original Will home with you from your solicitor’s office:

1. 1. Accidental loss and the presumption of revocation by destruction

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 animo revocandi, that is, with the intention of revoking it.^[1]  Whilst your executor can apply for a grant of probate of a copy of your Will^[2] (i.e. a grant ‘limited until the original or a more authentic copy be brought into the registry’),^[3] 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,^[4] or would not, have revoked the Will.^[5]

The strength of the presumption depends on the character of your custody over the Will.  This expression was helpfully explained by Campbell J in Cahill v Rhodes/Rhodes v Cahill:

It refers to facts concerning the physical arrangements the testator has for security of the Will – for instance, whether it is kept in a place which is locked or unlocked, if kept in a locked place, how many keys there are and who has them or has access to them, or whether the testator keeps his will in his coat pocket – who knows of the location of the Will, whether anyone besides the testator has access to the Will, and the extent to which the testator has been careful in looking after his Will. All these are matters which can affect the likelihood of the Will being missing because the testator himself destroyed it, or because there is some other explanation for its absence, like that someone else removed it, or that the testator has merely lost it.^[6]

The presumption is also weaker 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.^[7]  In all cases, it remains a question of fact whether the evidence rebuts the presumption on the balance of probabilities.  If, however, 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 clause.^[8]  This, of course, could result in your estate being administered in a way that you did not intend.

In addition, 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.  In order for a copy to be admitted to probate, it will be necessary for your executor to establish three things:

First, that it was properly executed or that execution ought to be dispensed with under Succession Act 2006, s 8; secondly, what its contents were, and thirdly, if the circumstances raise the presumption that the will was revoked by destruction, that presumption must be rebutted.[9]

Your executor must provide affidavit evidence in support of the application which addresses these requirements, and which also satisfies the Court that proper searches have been carried out which have not yielded the original Will.  Your executor will also be required to show that consents have been obtained from, or notice of the application given to, those persons who would be affected by the grant of the copy of the lost Will.  If you have included a charging clause in your Will which permits your executor to charge for work of a non-professional nature, the costs of an application for probate of a lost Will are likely to be greater, thereby diminishing your estate.

1. 2. Theft or deliberate destruction

In the extreme, if your Will is kept amongst your possessions, 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 discovers that it is not to his or her favour, he or she could destroy it.  Whilst this is an offence punishable by seven years imprisonment,^[10] were this risk to nevertheless 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.^[11]  The implications of this are outlined above.

1. 3. 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 (deliberate or inadvertent) act of destruction must also be accompanied by an intention on your part to revoke your Will.^[12]  Indeed, it has been said that “all the destroying in the world without intention will not revoke a will, nor all the intention in the world without destroying: there must be the two.”^[13]

However, if at 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 it will be rebuttably presumed to have been destroyed by you with the intent of revoking it.^[14]  When applying for probate, your executor will need to furnish clear and satisfactory 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.

1. 4. 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 compliant with s 14 of the Succession Act 2006 (NSW).  In general terms, an alteration must be properly executed in the manner in which a Will is required to be executed.^[15]  Pencil alterations are generally disregarded as being merely deliberative.[16]  For obliterations to be effective, the obliterated words must no longer be apparent on the face of the Will itself.^[17]  This means that they must not be capable of being made apparent with assistance, such as by interfering with the Will, for example, by applying water or chemicals to it.[18]

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.^[19]  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 let your solicitor have instructions to hold the original in safe custody, and obtain a copy from him or her for you to keep with your private papers.  Law firms are not allowed to charge you for storage or retrieval of documents unless you agree in writing to such charges beforehand.^[20]  Being a confidential document, your solicitor should not part with possession of it to anyone other than yourself or a person specifically authorised by you in writing.  As an alternative to storing it in safe custody at your solicitor’s firm, you can deposit your Will with a bank or the Registrar of the Supreme Court.^[21]  If you do decide to keep your Will, store it in a safe place and take heed of the comments of Campbell J in Cahill v Rhodes/Rhodes v Cahill extracted above.

Right to revoke your Will

You may revoke your Will at any time.^[22]  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.^[23]  There are, however, other ways in which to validly revoke your Will.  These are set out in s 11 of the Succession Act 2006 (NSW).

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.

A relatively recent example is the case of Re Estate Miruzzi,[24]in which the Court found that the destruction of a photocopy of a Will, even if believed to have been the original Will, was ineffective to revoke the Will.[25]  In that case, Lindsay J highlighted the importance of seeking professional assistance when revoking a Will, observing that:

…if the making of a will prudently warrants the direct involvement of a lawyer trained in the art, so too may the unmaking (revocation) of a will.[26]

Accordingly, if you wish to revoke your Will as part of your review process, or for any other reason, it is better to seek 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.^[27]  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.^[28]  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.^[29]

Inspection of your Will

As alluded to above, 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.^[30]  Once probate of your Will is granted, however, it becomes a publicly available document.

Consider providing a copy of your Will to your attorney

If you have an enduring power of attorney appointment in place, it can be helpful for her or him to know of the contents of your Will, so as not to inadvertently dispose of any property specifically gifted under the Will.  This can avoid the potential ademption of the gift; and, in turn, any legal proceedings that a disappointed beneficiary might think necessary to bring in order to secure his or her interest in the money or other property arising from the attorney’s disposition of the gift which the disappointed beneficiary stood to inherit.^[31]

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.

Finally, if you wish to make a list, letter or other document relating to your affairs after your death, seek legal advice before doing so.  The danger is that it may not be clear whether the document is intended to be testamentary in nature; and, legal proceedings about the status of the document could result.

Author: Raffael Maestri

Contributing Partner: Gerard Basha

 

[1] McCauley v McCauley (1910) 10 CLR 434, 438 (Griffith CJ), 446 (O’Connor J); Whiteley v Clune; Estate of Whiteley (No 2) (unreported, NSW(SC), 13 May 1993, Powell J) 26–7; see, eg, Re Edmonds (deceased) [2016] SASC 41 (24 March 2016) (Stanley J); Re Moschoudis [2016] VSC 139 (8 April 2016) (McMillan J).

[2] For a recent example, see Williamson v Pay [2020] QSC 66 (9 April 2020) (Davis J).

[3] The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934 (30 July 2014) [49]–[55] (Hallen J).

[4] For a discussion on capacity and revocation, see Public Trustee v Elderfield; Re Estate of Poole (Supreme Court of NSW, Young J, 26 April 1996, BC9601658).

[5] Welch v Phillips (1836) 12 ER 828.

[6] Cahill v Rhodes/Rhodes v Cahill [2002] NSWSC 561 (10 July 2002) [59] (Campbell J).

[7] Whiteley v Clune; Estate of Whiteley (No 2) (Supreme Court of NSW, Powell J, 13 May 1993) 27.

[8] Succession Act 2006 (NSW) s 15; In the Goods of Hodgkinson [1893] P 339, 341 (Lindley LJ), 341 (Lopes LJ), 342 (Smith LJ).

[9] Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (Thomson Reuters, 2^nd ed, 2020)162; see also See Cahill v Rhodes/Rhodes v Cahill [2002] NSWSC 561 (10 July 2002) [53]–[59] (Campbell J); Curley v Duff (1985) 2 NSWLR 716, 718-719 (Young J).

[10] Crimes Act 1900 (NSW) s 135.

[11] The presumption that the testator has destroyed a lost will animo revocandi has a related presumption that the will was not fraudulently abstracted either before or after the testator’s death: see Allan v Morrison [1900] AC 604, 609–11.

[12] Succession Act 2006 (NSW) s 11(1)(e).

[13] Cheese v Lovejoy (1877) 2 PD 251, 253 (James LJ).

[14] In the Goods of Lewis (1858) 164 ER 615; Re Adams [1990] 2 All ER 97, 99; see also Re Everest [1975] 2 WLR 333.

[15] Succession Act 2006 (NSW) s 14(1).

[16] Goods of Hall (1871) LR 2 P & D 256; Goods of Adams (1872) LR 2 P & D 267.

[17] Re Adams [1990] 2 All ER 97, 102–3.

[18] Goods of Horsford (1874) LR 3 P & D 211; Ffinch v Combe [2894] P 191.

[19] Succession Act 2006 (NSW) s 8; see, eg, Connor v Penstone [2010] WASC 197 (22 July 2010) (Jenkins J).

[20] See Legal Profession Uniform law Australian Solicitors’ Conduct Rules 2015 r 16.

[21] Succession Act 2006 (NSW) s 51.

[22] Vyniors Case (1609) 8 Co Rep 81b; 77 ER 597; Hornsby v Hornsby (No 2) [2014] WASC 434 (21 November 2014) [86] (Heenan J).

[23] Succession Act 2006 (NSW) s 11(1)(c).

[24] Re Estate Miruzzi, deceased [2018] NSWSC 1899 (19 December 2018) (Lindsay J).

[25] Ibid [63].

[26] Ibid [66]; see also Gerard Basha and Danielle Verde, ‘The unmaking of a Will – the need for strict compliance with the formalities for cancelling (revoking) a Will’, Bartier Perry Lawyers (Online article, January 2019) <https://www.bartier.com.au/insights/articles/the-unmaking-of-a-will-the-need-for-strict-compliance-with-the/>.

[27] Ibid s 12.

[28] Ibid s 12(2)(a).

[29] Ibid s 13.

[30] Ibid s 54.

[31] Power of Attorney Act 2003 (NSW) s 22; see, eg, RL v NSW Trustee & Guardian (2012) 84 NSWLR 263.