Can You Get Probate Of A Copy Will Or Unsigned Will?

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Can You Get Probate Of A Copy Will Or an Unsigned Will?

Written by: Karlene Wightman | Legal Team

 

A Will is a legal document that sets out the distribution of your assets by electing a person or persons to receive those assets when you die.  There are strict legal requirements surrounding the execution of a Will, all of which must be met for a Will to easily satisfy the Court of its validity.

Generally, once a person has executed their Will, they leave the original with the solicitor for storage and receive a copy for their records.  When the person dies, family members can attend the solicitor to obtain the original Will for probate purposes.

What happens if an executor cannot find the original Will?  All the executors can find is either (a) a signed copy of the original Will or (b) an unsigned copy or draft of what they believe is the last Will?  While there are a number of hurdles to overcome in these circumstances, all hope is not lost.

Grant of Probate of Copy Will

A Grant of Probate is a document issued by the Supreme Court confirming that the Will presented to them is the last Will of the deceased and that the estate should be distributed in accordance with that Will.

Obviously, the easiest way to do this is to present an original duly signed Will.  When this is not possible, and the executor is prepared to swear that there is no possibility of finding the original Will, a copy of the Will can be used to apply for a Grant of Probate as evidence of the last Will.

In an application for a Grant of Probate of a copy Will, the Executor must swear an affidavit which satisfies the Court that the testator did not destroy the Will with the intention of revoking it.

The affidavit must answer the following questions:

  • What happened to the original Will?
  • How was the Will originally drafted?
  • Where was the original Will stored prior to it going missing?
  • How extensively has the executor searched for the original?
  • Why does the executor think that the testator did not destroy the Will?
  • Where did the executor obtain a copy of the Will?

The executor will then submit the affidavit to the Court, together with a copy Will and other supporting documentation, such as the death certificate.

If all the above questions are answered to the satisfaction of the Court, the Court will issue a limited Grant of Probate, which means that the executor’s authority to administer the estate terminates if a more recent, original Will is found and proved in Court.

Want to understand further about Probate, what it involves and when it is required?  Check out this previous blog we put together: What Is Probate?

Grant of Probate Informal Wills

An informal Will is defined as any document that does not meet the requirements of Section 7 of the Wills Act (Vic) 1997, and therefore on the face of it, is not considered legally valid.

Examples can include:

  • A Will that has not been correctly executed;
  • A draft Will that the testator did not sign before death;
  • A handwritten note; or even
  • A tape recording of the testator’s wishes.

Section 9 of the Wills Act (Vic) 1997 allows the Supreme Court of Victoria to admit a document to probate even if the document does not comply with the formal execution requirements.  The Court is only permitted to do so if the executor can satisfy the Court that the testator intended that the document be their last Will.

Obtaining a Grant of Probate of a formal Will is more of a hurdle to overcome; however, it is not insurmountable.  In these circumstances, the Court often requires formal consent from anyone who would be adversely affected if probate of the unsigned Will was granted.  These people include:

  1. Anyone who would be entitled to the deceased’s estate had they died intestate; and
  2. Anyone who was beneficiary in any previous Will.

Want to know why it’s so important to create a Will – regardless of if you think you don’t have anything important to leave anyone?  Check out this previous blog we put together: The Importance Of Creating A Will.

Evidence The Informal Will Is Correct

It is the responsibility of the executor to gather enough evidence to satisfy the Court that the informal Will was intended to be the last Will of the deceased and that, on this basis, the document should be admitted to probate.

Examples of evidence the Court requires include:

  • Satisfactory evidence that the testator intended for the informal Will to operate as their last Will;
  • An explanation as to why the testator did not execute the Will in accordance with Section 7 of the Wills Act 1997 (Vic);
  • Evidence, generally in the form of a medical report from the testator’s usual treating doctor, that the testator has the requisite testamentary capacity at the time of signing the informal Will;
  • Evidence from any person who may have witnessed the making of the informal Will, giving details as to the circumstances surrounding the informal Will; and
  • Evidence from any person who can attest to the testator’s intentions that informal Will be the Will of the deceased.

All evidence should be put before the Court in the form of Affidavits from the relevant people.  Generally, there is no need to attend court for a formal hearing, all evidence is assessed and a determination is made without a formal court hearing.

It is important to note that the Court has previously determined that a Will that has been drafted by a lawyer, but not yet signed, was not considered to be an informal Will.

This was primarily because there had been no confirmation that the testator intended to sign the draft Will in its current form.  Therefore, the Court found that the draft Will was unable to be admitted to probate.  The lesson here is that a Will that has been drafted by your lawyer will be unable to be relied upon unless there is some evidence that no changes were required and that the testator was ready and able to sign.

Canny Legal + Expert Legal Advice

While it is always preferable for an executor to be in possession of a formal, fully executed Will, all hope is not lost if this is not the case.  It is easy to put the above scenarios in the ‘too hard basket’, but delaying an application for probate will only add to the hurdles that need to be overcome when making the above applications.

Taking action with Canny Legal can help you clarify the legal requirements for Wills and Probates, all while guiding you through the complexities of intestacy laws when no will exists.

Get in touch with our team to have a chat today and ensure your Will is completed correctly and kept in safe hands.

Karlene Wightman | Canny Legal Principal Lawyer

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