Why the Original Will Matters in NSW

The Supreme Court of NSW requires the original signed will for a grant of probate. A photocopy, scan, or draft is not enough on its own. The original is the document the testator signed in the presence of two witnesses under section 6 of the Succession Act 2006 (NSW).

If the original is missing, the executor must either find it, apply for probate using a copy, or accept that the estate may pass under the intestacy rules in Chapter 4 of the Succession Act 2006 (NSW). Each path has very different consequences for the beneficiaries the deceased named in the will.

Search Steps Before Concluding the Will Is Lost

Before assuming the will is lost, the executor must conduct a thorough search and document every step. This is part of the executor’s general duties to the estate, and the Supreme Court of NSW expects it when reviewing applications based on a copy. The standard places to search include:

Search the Deceased’s Home and Personal Effects

Wills are often kept in home filing cabinets, safes, locked drawers, or stored among insurance and tax records. Check for sealed envelopes marked with the testator’s name. Make a written record of what was searched, when, and by whom.

Contact Solicitors and Will-Drafters

Many wills are held by the solicitor who drafted them. Contact every solicitor or law firm the deceased used. If the testator changed solicitors over the years, contact each firm in turn and ask for an affidavit confirming whether the will was held there.

Check the NSW Trustee and Guardian Register

The NSW Trustee and Guardian holds wills in safe custody on behalf of many clients. They maintain a searchable register. A request to search is a standard step in any missing-will matter.

Approach Banks, Accountants, and Financial Advisers

Some testators store wills in bank safety deposit boxes or with their accountant or financial adviser. Contact every institution the deceased held a relationship with. The Supreme Court expects executors to leave no obvious source unchecked before concluding the will is genuinely lost.

The Presumption of Revocation in NSW Law

If the original will was last in the testator’s own possession and cannot be found after death, the common law applies a presumption that the testator destroyed it with the intention of revoking it. The Supreme Court of NSW refers to this as the presumption of destruction animo revocandi.

The presumption is not automatic. It is rebuttable on evidence. The executor must file an affidavit that addresses:

• The relationship between the deceased and those who benefit under the will
• Any changes in those relationships before death
• Statements the deceased made about the will or their testamentary intentions
• Whether the deceased’s conduct toward beneficiaries remained consistent with the will

In Cahill v Rhodes [2002] NSWSC 561, Justice Campbell set out the five matters an executor must prove to admit a copy of a lost will: the existence of a will or document embodying testamentary intentions, that the document revoked any earlier will, that the will was not revoked, the terms of the will, and either evidence of due execution or that the deceased intended the document to constitute their will.

When the Presumption Does Not Apply

The presumption of revocation only arises where the will was last traced to the testator. The NSW Court of Appeal confirmed this in Jaksic-Repac v Dundjerski [2025] NSWCA 256, holding that the presumption did not arise because the deceased believed the original was held by her solicitors and had never been returned to her — so there was no basis to presume she had destroyed it.

The presumption is weak or does not arise where:

• The will was last in the possession of the solicitor who drafted it
• The will was deposited with the NSW Trustee and Guardian or another safe-custody service
• The will was held by a third party such as a bank or executor before death
• Evidence shows the will was destroyed accidentally rather than deliberately

Where the will was in someone else’s safekeeping, the executor’s affidavit must address the safe-custody history. The case is generally much easier to make.

How to Apply for Probate With a Copy of the Will

An application for probate of a copy of a lost will is more complex than a standard probate application. Each step must be evidenced and documented to the court’s satisfaction. The application proceeds through the Supreme Court probate registry under Part 78 of the Supreme Court Rules 1970 (NSW).

Meet the Five Cahill v Rhodes Requirements

The affidavit accompanying UCPR Form 111 must address each of the five requirements set out in Cahill v Rhodes. Generic statements are not enough. The court expects specific, factual evidence on each element.

Provide Comprehensive Affidavit Evidence

The executor’s supporting affidavit must record every search that was conducted, the testator’s statements about the will, any evidence of testamentary intentions, the terms of the will (often by reference to a photocopy), and an explanation of why the presumption of revocation should be rebutted on the facts. Affidavits from the drafting solicitor are usually essential.

Serve Notice on Those Affected on Intestacy

Where the people who would inherit under intestacy differ from the beneficiaries named in the copy of the will, the executor must obtain written consent from each adversely affected person, or formally serve notice on them. The court will not grant probate on a copy without this step being completed.

If the application is successful, the grant is usually qualified with the wording: “Probate of a copy of the will: Limited until the original will is found and proved.” This protects the position if the original later surfaces.

What Happens If a Copy Cannot Be Found

If the executor cannot find a copy of the will and cannot prove its terms through other means, the next question is whether any earlier will exists. An earlier valid will may still be admissible to probate.

If no will or copy of a will is available, the estate is dealt with under the intestacy provisions of the Succession Act 2006 (NSW). A person entitled under intestacy applies for letters of administration instead of probate. Distribution then follows the statutory order under Chapter 4 of the Act rather than the will-maker’s wishes.

Detailed information on the intestacy rules is set out in our guide to dying without a will in NSW.

How to Protect Your Will From Being Lost

For will-makers reading this, the practical steps to prevent these problems are straightforward:

• Deposit the original with the NSW Trustee and Guardian under their will-safekeeping service
• Leave the original with the drafting solicitor under a formal safe-custody arrangement
• Tell your executor in writing where the original is held
• Keep your own copy at home, but never the only signed original
• Update the will if your circumstances change, so the most recent valid will is always the one on record

A solicitor’s safe-custody record is among the strongest evidence available to defeat a presumption of revocation if the will is later misplaced.

How a Specialist NSW Probate Lawyer Helps With a Missing Will

Probate applications based on a copy of a lost will are not routine work. They sit in the complex proceedings category of the Supreme Court’s probate list and require detailed affidavit evidence, careful service on potentially adversely affected persons, and tactical judgment on whether to proceed at all.

Our team at Empower Probate Lawyers focuses exclusively on probate, estate administration, and will disputes. Our director, Oliver Morrisey, holds a Master of Laws in Wills and Estates (High Distinction) and has acted in numerous lost-will and complex probate applications across NSW. We help executors:

• Conduct a complete search and document it to the court’s standard
• Build the rebuttal evidence required to overcome the presumption of revocation
• Prepare the affidavit material to satisfy each of the five Cahill v Rhodes requirements
• Manage notice and consent for every person adversely affected on intestacy
• Defend the application if a beneficiary or potential intestacy beneficiary opposes the grant

Frequently Asked Questions

Can probate be granted on a photocopy of a will in NSW?

Yes. The Supreme Court of NSW can grant probate on a copy of a lost will if the executor proves the five matters set out in Cahill v Rhodes [2002] NSWSC 561 and rebuts the presumption of revocation. The grant is usually limited until the original is found and proved.

What if the will was last with the deceased’s solicitor?

If the original was last in the solicitor’s possession and is now missing, the presumption of revocation generally does not apply. The executor still needs an affidavit from the solicitor detailing their record-keeping practices and the searches the firm has conducted.

Does the estate automatically pass under intestacy if the original will is lost?

No. The estate only passes under intestacy if the executor cannot rebut the presumption of revocation and no earlier valid will exists. An application for probate of a copy succeeds in many cases where the rebuttal evidence is strong.

How long do I have to apply for probate of a lost will?

There is no strict deadline, but the Supreme Court expects applications within six months of death where possible. Applications filed after six months require an explanation of the delay. The longer the delay, the harder it is to gather the rebuttal evidence the court requires.

What is section 8 of the Succession Act 2006 (NSW)?

Section 8 is a separate power. It allows the court to admit a document that does not meet the formal execution requirements as a will, if the court is satisfied that the deceased intended it to be their will. It is the basis for admitting informal wills, not for proving a lost will.

What evidence is most useful in a missing-will case?

Affidavits from the drafting solicitor about their safe-custody practices, the deceased’s recent statements about the will, evidence that the deceased’s relationships and intentions had not changed, and a complete record of every search conducted. The stronger the tracing evidence, the stronger the application.

Speak With a NSW Probate Lawyer About a Lost Will

If you cannot locate the original will of someone who has died, the next steps matter. Call Empower Probate Lawyers on 1300 481 161 for an initial discussion of your situation. Specialist advice. Free initial consultation. Deferred fee arrangements are available in eligible cases.