My father has made a will but he held the original it and it can't be found. Can a copy of the will be used instead of the original?
- When a person makes a will and the original was last seen in their possession but can't be found when they die, then there is a legal presumption that they have destroyed the original intending to cancel the will.
- Like other legal presumptions, evidence can be given in court to overcome this. Such evidence might be given by witnesses relating statements by the deceased shortly before death that show he/she still intended the will to operate. But in the absence of any evidence as to what happened to the original, or statements to support the intention that the will still operate, the person will be found to have died without a will.
- in such circumstances, the Court will require the persons who would have received a benefit on intestacy to be notified and given the opportunity to dispute the use of the copy.
- when the presumption can be overcome, evidence of the terms of the will may be accepted by the court even if a copy can't be found.
- When attempting to obtain probate on a copy of a will, the Supreme Court will require that all persons who would have received the estate on Intestacy be notified of the application and given an opportunity to object.