Discovering that you only have a copy—not the original—of a deceased person’s Will can be unsettling. In South Australia, the law presumes that if the original Will cannot be found after the testator’s death, it was destroyed intentionally and revoked. But that presumption isn’t always the end of the story.

This article outlines how Courts deal with missing original Wills and what steps you can take if all you have is a copy.

Why the Original Will Matters

In South Australia, the Probate Registry of the Supreme Court requires the original signed Will before it will grant probate—that is, the official authority to administer the estate.

If the original Will is missing but a copy exists, a person (usually an executor or next of kin) may apply for a grant of probate of a copy. However, this is not straightforward. The applicant must convince the Court that:

• The original Will was not intentionally destroyed by the deceased with the intention of revoking it;
• The copy accurately reflects the contents of the original;
• The Will was properly executed; and
• There are no suspicious circumstances around its disappearance.

The Legal Presumption: Revocation by Destruction

The law starts from the position that if the original Will was last in the possession of the deceased and can’t be found after death, it was likely destroyed intentionally to revoke it. This is called the presumption of revocation.

To overcome this presumption, the person seeking probate must produce evidence to the contrary—essentially proving that the missing original was not destroyed on purpose.

Examples of relevant evidence might include:

• The deceased discussed the Will and confirmed it remained valid shortly before death;
• The deceased had a consistent testamentary intention reflected in earlier Wills;
• The deceased had limited capacity or was unable to destroy the Will;
• Others (e.g. disgruntled family members) had access to the Will and may have misplaced or destroyed it without consent.

What Can the Court Do?

If the Court is satisfied the Will was not revoked, it can grant probate of a copy. This usually involves submitting:

• An affidavit explaining the circumstances of the loss;
• Evidence of the deceased’s intention to uphold the Will;
• A copy of the Will (certified if possible);
• Other supporting evidence—such as prior Wills or statements from witnesses.

If the Court is not satisfied, the estate may be distributed under the rules of intestacy, which may not reflect the deceased’s actual wishes.

What Should You Do?

If you find yourself in possession of only a copy of a Will, you should:

• Seek legal advice immediately—time limits may apply if disputes arise;
• Locate potential witnesses who knew about the original or the deceased’s intentions;
• Avoid distributing assets or making decisions until the probate situation is resolved.

It is also advisable to secure any physical evidence of the copy’s origin and keep a detailed record of when and how it was discovered.

Key Takeaways

• Courts can grant probate of a copy of a Will, but only if there is sufficient evidence that the original wasn’t revoked.
• The legal presumption is that a missing original was revoked—this must be rebutted with clear and credible evidence.
• Early legal advice can make the difference between enforcing the deceased’s wishes and defaulting to intestacy rules.

If you need help with a probate application involving a copy of a Will, contact Chris Andonas, Peter Charatsis or Sini Popovic for expert guidance.

The above is general in nature and does not constitute legal advice.