Many people assume that once they properly sign a will, they secure their estate plan. In most cases, they do. A will typically distributes assets according to the testator’s wishes and gives family members and executors certainty. Problems arise when no one can locate a missing will after the testator’s death. In these circumstances, the law may presume that the deceased intentionally destroyed the will. Lawyers refer to this as the presumption of revocation. If no one rebuts that presumption, the estate may be administered as if the deceased left no will. For large or complex estates, the consequences can be profound. Disputes can emerge, executors can face delays in administration, and the outcome can differ significantly from what the deceased intended.
This is not a theoretical risk. It was the central issue in the recent New South Wales Court of Appeal decision, Jaksic-Repac v Dundjerski, which concerned a missing original will and a $24 million estate.
How the Law Treats a Missing Will
A will is not merely evidence of intention. It is a formal legal instrument. When no one can find the original signed document, the court must determine whether the deceased intended to revoke it.
The law approaches this issue through a structured principle. If the deceased last held the will and no one can find it after death, the court may presume the deceased destroyed it to revoke it. However, the court does not apply this presumption automatically and may displace it if evidence shows the deceased continued to treat the will as operative.
In Jaksic-Repac v Dundjerski, the Court of Appeal held that the presumption of revocation did not arise because the evidence did not establish that the deceased ever had the original will in her possession after she executed it. The presumption typically requires proof that the deceased last held the will and that it later went missing. The evidence did not establish that foundation.
The Court further held that even if the presumption had arisen, the evidence would have rebutted it. The deceased’s conduct in the period leading up to her death was inconsistent with any intention to revoke the will. She had sent a copy of the will to a beneficiary and had informed her solicitor that she had a current will in place. Those actions demonstrated a continuing intention to remain operative.
The case illustrates a critical point. The absence of the original will creates legal uncertainty that the court must resolve through evidence, not assumption.
Why Intention Matters
When a will is missing, the court does not simply ask whether the document exists. It asks whether the deceased intended the will to remain valid.
Relevant evidence may include:
- Statements by the deceased referring to a current will
- Communications with solicitors or advisers
- Conduct consistent with the will remaining operative
- Circumstances surrounding the storage and possession of the document
In Jaksic-Repac, these factors were sufficient to rebut the presumption of revocation. However, reaching that conclusion required litigation, factual reconstruction, and judicial determination. Each of these entails’ costs, delays, and uncertainty.
The case also confirms that the court may, in some circumstances, admit informal documents such as unwitnessed codicils to probate if it is satisfied that they reflect testamentary intention. This outcome is neither simple nor predictable, and it often requires contested proceedings.
The Real Risk: Uncertainty, Dispute, and Cost
Where the original will cannot be located, several risks arise simultaneously.
The estate may be distributed under intestacy laws rather than the deceased’s intended plan. This can significantly alter who inherits and in what proportions.
Disputes between beneficiaries are common. A missing will frequently triggers contested probate proceedings, particularly where the estate is substantial or the distribution is unequal.
Administration of the estate may be delayed. Executors may face uncertainty, additional legal obligations, and potential personal exposure.
For business owners and asset-holding individuals, the consequences extend further. Uncertainty around testamentary documents can disrupt succession planning, ownership of business interests, and the operation of asset protection structures.
Where Problems Commonly Arise
In practice, disputes involving missing wills often stem from preventable issues rather than deliberate action. Common causes include:
- The original will be stored in an unknown or insecure location.
- Executors are unaware of where the document is kept.
- Only copies are being retained, with the original misplaced or destroyed.
- Informal handwritten amendments made without proper execution
- Multiple inconsistent versions of a will exist simultaneously.
- Loss of the document during illness, relocation, or hospitalisation
These risks often remain invisible until death, when they become difficult or impossible to correct.
Practical Steps to Protect Your Estate Plan
Careful planning and proper document management can substantially reduce the risk of a missing will. Many disputes arise because people fail to store or communicate testamentary documents properly, rather than because of complex legal issues.
Store the original will securely, preferably with your solicitor or in a recognised professional safe custody facility. Do not keep it in places where people often misplace documents, such as home filing systems, personal safes, or storage boxes. If you relocate, change advisers, or experience significant life events, confirm where you hold the original will and ensure you keep it secure.
Inform your executor and a trusted person of the will’s location and how to access it. Problems often arise when a will exists, but no one knows where to find it, causing delays and increasing the risk of dispute.
Avoid informal alterations. Handwritten changes, margin notes, or unwitnessed updates frequently create uncertainty and may lead to litigation rather than clarity.
Maintain a current estate plan and review it following major life changes such as marriage, separation, changes in assets, or business restructuring. Keeping clear records of your intentions and communicating with your legal advisers can also assist if questions arise about whether your will remains operative.
These practical steps can significantly reduce the risk that someone misplaces a will and help ensure the estate is administered with certainty and without dispute.
Strategic Perspective: Prevention Is Far Less Costly Than Litigation
Disputes over missing wills are rarely about a single document. They involve intention, evidence, and legal interpretation. Proper legal guidance significantly reduces the risk of uncertainty and conflict.
Experienced advisers assist not only in drafting a valid will, but also in ensuring:
- Proper execution and secure storage
- Clear and defensible testamentary intention
- Structuring of estates to minimise dispute risk
- Guidance for executors navigating probate issues
- Efficient resolution of contested estate matters where disputes arise
Early legal involvement can prevent uncertainty from becoming a costly dispute.
Conclusion: Certainty Requires More Than Signing a Will
A will is only effective if it can be located, relied upon, and enforced. When no one can find the original document, the legal and financial consequences can be significant, and the outcome can diverge from the deceased’s true intentions.
Careful execution, secure storage, and proactive legal advice are essential to preserving certainty in estate planning. These steps help ensure your estate is administered as intended and help you avoid the uncertainty, delay, and cost that frequently accompany a missing will.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
Article written by Isabelle Knight, Solicitor
