Legal Tip 291: What Happens if a Will is Destroyed after Death?

Discussion in 'Wills & Estate Planning' started by Terry_w, 16th Jun, 2020.

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  1. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Imagine this:

    Homer dies in the kitchen and Marge finds his will. She reads it while waiting for the ambulance and finds that he has left a property to Ned, one of his best friends and the rest to Marge.

    Its winter and the fireplace is going - Marge burns the will in a fit of inheritance rage.

    Without a will the assets pass via the intestacy laws – all to Marge in this case. Ned is none the wiser.

    I imagine these sort of thing does happen sometimes, but people can come unstuck because

    - The executor or administrator is legally bound to search for wills, including contacting lawyers etc.

    - There might be a copy somewhere

    o Including on the computer

    o Email copies

    o Drafts emailed between lawyers

    - The beneficiary might know about it – Ned might have been told by Homer in this example

    - Others might also know about it

    - There would have been at least 2 witnesses present when signed

    So, these things often end up in court and when money is involved the other side will potentially dig deep. I recall a case involving the death of a financial planner where his computer was examined and a copy of the will was found on it.
     
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  2. Trainee

    Trainee Well-Known Member

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    For the person making the will, one way is to have the lawyer keep a copy. Lawyers have fireproof safes and so on for this purpose.
     
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  3. SatayKing

    SatayKing Well-Known Member

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    Yes.

    My arrangements are:
    • Original Will with firm of solicitors along with Enduring Power of Attorney and copy of Binding Death Benefits Nomination*;
    • Certified copy of Will and EPA with financial firm and original of BDBN;
    • Certified copy of Will and EPA handed to nominated Executors and Attorney. The BDBN not provided but informed where original is held. Didn't want beneficiaries to get too excited.
    * BDBN made payable to Estate and Will provides for a Superannuation Death Benefits trust.
     
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  4. Perp

    Perp Well-Known Member

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    It's a bad idea for the original will to be kept in the author's custody. Why? There's a principle - the presumption of destruction - which applies if the testator had access to their will, as in @Terry_w 's example, that if a will that was in the possession of the testator is missing, that the law presumes the testator revoked the will by destroying it. (A valid form of revocation.)

    In order for Ned to have his inheritance honoured, he'd have to tender evidence not only as to the contents of the destroyed will, but also enough to convince the court that Homer didn't destroy it.

    Thus it's wise to have your original will stored with an independent third party, such as your solicitor.
     
  5. qak

    qak Well-Known Member

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    Can 'copies' of Wills be used? I thought only originals would be acceptable.
     
  6. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Yes they can.
     
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  7. SatayKing

    SatayKing Well-Known Member

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    A matter of doing as much as you can for the protection of your beneficiaries and then not overly stressing about it. Once your dead it's going to be the beneficiaries problem because you won't be here to sort out the cat fight.
     
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  8. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    My personal opinion is that it is best to leave it to them with the best possible tax and asset protection outcome but make it very flexibible. Stress the importance of getting advice, but if they decide they want to take all the assets out of the trust on day one its really up to them.

    If any beneficiaries legally disabled it would be a different matter though
     
  9. balwoges

    balwoges Well-Known Member

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    A copy of my will is being held in a 'cloud' where hopefully I can watch over it ... :D
     
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