Lost a Family Will? What to Do When the Original Will Can’t Be Found?

Introduction

The loss of the original Last Will and Testament of a deceased family member does not automatically invoke the laws of intestate. If a copy, or a portion of a copy of the original document can be provided to the Court, the Court may then make the determination that the copy, or a portion thereof, is sufficient for distribution of the deceased’s assets.

In the event that the surviving relatives or possible beneficiaries can provide the court with evidence of the following,

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a copy of a last will and testament can be used as

the determining factor for the distribution of the

deceased’s assets.

Succession Act 2006 – Section 8

(1) This section applies to a document, or part of a document, that:

(a) purports to state the testamentary intentions of a deceased person, and(b) has not been executed in accordance with this Part.

(2) The document, or part of the document, forms:

(a) the deceased person’s will-if the Court is satisfied that the person intended it to form his or her will, or

(b) an alteration to the deceased person’s will - if the Court is satisfied that the person intended it to form an alteration to his or her will, or

(c) a full or partial revocation of the deceased person’s will-if the Court is satisfied that the person intended it to be a full or partial revoca-tion of his or her will.

(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:

(a) any evidence relating to the manner in which the document or part was executed, and

(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).

(5) This section applies to a document whether it came into existence within or outside the State.

In conjunction with Succession Act 2006 – Section 8, the court may also use the Wills Act 1936 – Section 12 to assist them in making a determination regarding the intentions of the deceased.

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Validity of will Per this section the court will take into consideration the following factors. These factors Will be applied to the issue of whether the copy of the will, or whether the partial contents of the Will, are valid:

(1) A will is valid if executed in accordance with this Act, notwithstanding that the will is not otherwise published.

(2) Subject to this Act, if the Court is satisfied that— (a) a document expresses testamentary intentions of a deceased person; and (b) the deceased person intended the document to constitute his or her will, The document will be admitted to probate as a will of the deceased person even though it has not been executed with the formalities required by this Act.

(3) If the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses an intention by a deceased person to revoke a document that might otherwise have been admitted to probate as a will of the deceased person, that document is not to be admitted to probate as a will of the deceased person.

(4) This section applies to a document whether it came into existence within or outside the State.

(5) Rules of Court may authorize the Registrar to exercise the powers of the Court under this section.

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Succession Act 2006 – Section 8

If the court determines under Succession Act 2006 – Section 8 and/or Wills Act 1936 – Section 12 that the evidence produced substantiates the exis-tence of a Last Will and Testament, the assets can be distributed accordingly to all named beneficia-ries.

To prevent these very significant issues from arising, it is highly recommended that upon drafting a Will the Testator register their Will with The Will Registry.

There are several significant benefits from taking advantage of this available service. First and fore-most, the registering of a Will allows for peace of mind for the Testator.

Once the Will is successfully registered, the Testator no longer has to concern themselves with making sure that one or more copies of the Will have been distributed to persons that can be depended upon to provide the docu-ment to the court in an expedient manner.

In addition, The Will Registry allows for the immediate and easy access of the document to all loved ones at a time when they are already feeling great stress and pressure to carefully carry out the desires of the deceased. The Will Registry allows for the registration of all legal documents, not just a Last Will and Testament. Finally, and quite significantly,

The Will Registry also allows for unlimited revision and changes to the Will at any time and from anywhere. While it is true that a copy of an original Will can be determined sufficient to distribute the deceased’s assets, it is safer and more expedient to ensure that the original Will is immediately available upon necessity.

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