A lost will for the purpose of this series is one which is the last in chronological sequence of all wills known to have been made, but which cannot be found at death.
A lost will which is not the last will is not usually a problem.
An important consideration is whether the lost will was last traced to the possession of the deceased. For example, if by enquiry it is found that the will was prepared and stored for a while by a firm of solicitors but was then collected by, or delivered to, the deceased by request, and if it cannot be found at death, it is a scenario which presents a difficulty.
The reason for that is that the legal system applies a presumption that the deceased destroyed that will, with the intention of revoking it. A presumption is an inference which the legal system draws when some facts are present, allowing a resulting fact to be treated as true, without requiring direct proof. Therefore, the proven fact that the will was last traced to the possession of the deceased but not found at death, leads to the presumption that the will has been revoked by destruction.
The presumption of destruction can be rebutted. It must be rebutted if it is intended that some reproduction (in the form of a copy or, more extravagantly by the recollection of persons who were familiar with the wording of the will) is to be legally recognised as a replacement for the lost will.
The presumption can be most easily rebutted if there is persuasive evidence that the will was lost through accident, such as a house fire, flood, burglary etc.
Probate was discussed at Item 3.3 of Bulletin No 3. The most straight forward procedure for obtaining common form probate, is where the facts and circumstances are such that it can be granted by the Registrar. However, for a lost will where probate is sought of a copy of that will, or some other reproduction, the common form probate cannot be issued by the Registrar. It must go before a Supreme Court Judge, with the additional expense which that involves.
If a solicitor is told that the latest will in the chronological sequence is missing, that solicitor is ethically prevented from “turning a blind eye” and assisting in seeking probate of a second-last or earlier will.
Sometimes, the location of the last will is known with certainty, but it is inaccessible or unobtainable. For example, if a citizen of the United States has most assets in the USA (as a result of which the original will is filed for probate in, say, California) but also has assets in Queensland, the Californian Court will not release the original will for probate purposes in Queensland. The grant in Queensland must be applied for by way of a copy of the will (with certain embellishments). The will is not lost (rather, it is unobtainable), but because probate is sought of a copy, the matter cannot be handled by the Registrar and must be handled by a Supreme Court Judge.