When the Original Will Cannot Be Found: Proving a Lost Will or a Copy in Victoria 

Can a copy of a lost will be admitted to probate in Victoria? 

Yes. In Victoria, executors and families administering substantial estates can seek probate of a copy will when the original cannot be found but must establish the will’s validity, contents, and address whether it was revoked. 

A missing original does not automatically mean the deceased died without a valid will. However, where the original was last in the will-maker’s possession and cannot be found after death, a presumption of revocation may arise: the law presumes they destroyed it intending to revoke it. The applicant must rebut that presumption with evidence. 

For estates involving private company shares, investment properties or competing family interests, this uncertainty can delay administration and affect who inherits. A clear scan alone does not resolve those questions. 

Searching for the original will is therefore an evidentiary task. Records of enquiries, the drafting solicitor’s file, and evidence about the will-maker’s custody of the document can matter. An application also requires evidence of due execution, meaning the original was properly signed and witnessed. Preserving that material early helps the executor assess whether the copy can be proved. 

What Must Be Proved to Obtain Probate of a Copy Will in Victoria? 

In Victoria, section 7 of the Wills Act 1997 (Vic) sets the ordinary execution requirements, while section 12 governs revocation. Under section 12(2)(f), destruction revokes a will only where the will-maker, or someone acting in their presence and at their direction, destroys it intending to revoke it. Accidental loss or destruction does not itself revoke a will. 

Rule 2.02.1 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) ordinarily requires the original will to be filed within 28 days after the probate application is submitted through RedCrest-Probate. Where the original is unavailable, an applicant seeking probate of a copy will must establish why the Court should admit the copy as evidence of the missing will. 

In Cahill v Rhodes [2002] NSWSC 561, Campbell J identified five matters to establish: the will’s existence; its revocation of previous wills; overcoming any applicable presumption of destruction with intent to revoke; its terms; and due execution or satisfaction of the applicable statutory requirements for an informal will. Although an NSW decision, its principles have been adopted in Victorian cases. In Cahill itself, the presumption was not rebutted, and the Court found that the deceased died intestate. Evidence of due execution concerns compliance with signing and witnessing requirements. In Victoria, section 9 provides a separate power to dispense with execution requirements where its conditions are satisfied; the original’s absence alone does not require that power. 

The presumption of revocation is a rebuttable presumption of fact. It arises where an original will is traced into the will-maker’s possession but cannot be found after death. Its strength depends on the circumstances, including how the document was stored and who could access it. The person seeking to prove the will must rebut the presumption on the balance of probabilities. 

In Re Ioannidis: Gebert v Sarvos [2025] VSC 418, Daly AsJ found that burden satisfied. The Court considered the deceased’s enduring estrangement from one son and the greater provision that son would receive on intestacy. Those circumstances supported the finding that the deceased had not destroyed the original. The decision illustrates why evidence of the will-maker’s intentions must be assessed alongside custody and surrounding circumstances. Applicants need not establish precisely how the original disappeared but must establish that it remained legally effective. 

How does the Court assess a lost will or copy in Victoria? 

The Court considers the evidence as a whole when deciding whether a copy records an operative will. The central questions concern the original’s custody, the reliability of the copy, and whether the deceased intended to revoke the will. 

Who last held the original will? 

The presumption of revocation depends on tracing the original into the will-maker’s possession. That can be established through a solicitor’s usual practice, even without a specific recollection of handing it over. In Re Ioannidis, the drafting solicitor’s practice of returning originals to clients helped establish that starting point. The Court then considered how the document might have been stored. General evidence that someone was careful with paperwork does not establish that this will was kept securely. 

What searches must the evidence explain? 

Searching for the original will requires more than a statement that it cannot be found. Executors should identify places searched, people contacted, and responses received. Relevant enquiries may include the drafting solicitor, former legal advisers, banks, and anyone entrusted with important documents. An affidavit of search should record those steps accurately and explain any gaps. A detailed search supports the application but does not itself prove that the will was never revoked. Cahill illustrates that adequate searches can coexist with an unrebutted presumption. 

How is the copy’s reliability established? 

The applicant must establish the missing will’s contents and provide evidence of due execution, subject to any separate informal-will application. A complete photocopy showing signatures, an attestation clause and consistent page numbering may assist, alongside the drafting file and witness evidence. Any handwriting, missing pages or differences between versions need explanation. In Re Ioannidis, the drafting solicitor identified the copy as a true copy, while the applicant explained handwritten markings she had added. The Court must distinguish the deceased’s document from later annotations. 

What do later statements and draft wills reveal? 

Evidence of the will-maker’s intentions is relevant, but wanting to change a will does not necessarily mean it was revoked. The Court examines instructions to solicitors, statements to others, subsequent drafts, and changes in family relationships. In Re Ioannidis, the deceased’s wish to exclude one son entirely made deliberate destruction without a replacement less likely, because intestacy would have benefited that son. The reasoning depended on the whole evidentiary picture, including the deceased’s understanding of that consequence. 

Does a carefully considered will guarantee probate? 

No. A will resulting from mature deliberation may weaken the inference of revocation, particularly where circumstances remained consistent. However, it does not remove the need to examine contrary evidence. In Cahill, evidence that the deceased resumed aspects of his relationship with the former partner excluded by the later will contributed to the failure to rebut the presumption. The Court’s task is to determine whether the missing document remained operative at death. 

What Disputes Arise When the Original Will Cannot Be Found? 

Disputes over probate of a copy will often concern who benefits if the document is rejected. The surviving copy may favour one family member, while intestacy would give another a larger share. That difference makes the evidence about revocation critical. 

In Re Ioannidis: Gebert v Sarvos [2025] VSC 418, the deceased’s daughter sought probate of the copy, while her brother opposed the application. He stood to receive substantially more on intestacy. The disagreement concerned whether their father had destroyed the original, with competing accounts of family relationships and later intentions. 

The Court examined those accounts against solicitors’ records and other contemporaneous materials. For executors, the practical issue is identifying and preserving evidence from people whose knowledge extends beyond the inheritance dispute. A beneficiary’s conviction about what the deceased wanted cannot resolve gaps in the documentary history. 

The copy in Re Ioannidis bore handwritten markings added by the daughter after she received it. She explained those additions in affidavit evidence, and the drafting solicitor identified the copy as a true copy of the original. 

That distinction matters: the Court must understand which words formed part of the executed will, and which were added later. Executors should preserve the document as found, including its fax cover sheet, email, or other evidence. A clean retyped version should not obscure annotations or replace the available copy as evidence. 

Even if the copy is admitted to probate, interpreting ambiguous wording may require separate advice where competing readings affect a beneficiary’s entitlement. 

Re Ioannidis also involved draft wills prepared in 2013 and 2021 that were never signed. Their terms differed from the 2002 will. The Court considered those drafts when assessing the deceased’s intentions but ultimately concluded that the presumption of revocation had been rebutted. 

Cahill v Rhodes [2002] NSWSC 561 demonstrates the opposite outcome. Although the Court accepted that a later testamentary document existed and revoked the earlier will, the applicant did not overcome the presumption that the later document had itself been revoked. The estate therefore passed on intestacy. 

These decisions show why locating a copy or proving that a later will once existed is only part of the task. Each document’s legal effect and the evidence of subsequent revocation require separate attention. 

What Evidence Should Be Secured Before Pursuing or Opposing Probate of a Copy Will? 

Before seeking probate of a copy will, the executor should assess what the evidence establishes about the original at each stage: execution, delivery, storage, later instructions, and the searches after death. A chronology can expose a missing link that a general statement about the deceased’s wishes would conceal. 

Obtain the drafting solicitor’s file and identify witnesses while their recollections remain available. Separate personal knowledge from assumptions. Evidence that a solicitor ordinarily returned originals to clients may establish possession, but it does not explain what happened afterwards. Similarly, evidence that the deceased wanted to change beneficiaries must be considered alongside whether any replacement document became legally effective. 

An affidavit of search should identify the searches undertaken with supporting correspondence available. Preserve every version of the will, including annotations and the electronic records showing how a scan was received. Address unfavourable material directly. An unexplained reference to “no will”, an unsigned replacement or inconsistent family accounts can become central to cross-examination. 

For a person opposing the application, the question is what evidence supports revocation beyond the original’s presence. The presumption of revocation matters, but its strength depends on custody, the document’s contents, and the surrounding circumstances. A larger entitlement on intestacy explains a party’s interest; it does not prove revocation. 

Where an executor has already received or dealt with estate assets, the dispute should also be assessed alongside the executor’s duty to account for those transactions. 

Costs also require prompt attention. In Cahill, the Court ordered both parties’ costs to be paid from the estate because the deceased had left genuine uncertainty about his will. That result is not automatic. The financial assessment should account for the competing entitlements, evidentiary weaknesses, and the potential erosion of the estate through litigation. 

Frequently Asked Questions 

What Should You Do Before Applying for Probate of a Lost Will in Victoria? 

A missing original will does not necessarily prevent probate in Victoria. The outcome depends on proving the document’s contents and validity, investigating its custody, and addressing any presumption of revocation. For estates involving business interests, property, or competing beneficiaries, that assessment can determine both who administers the estate and who ultimately inherits. 

Before pursuing or opposing probate of a copy will, secure the available documents, record the searches, and obtain advice on the evidence that supports or undermines the application. 

Pentana Stanton Lawyers’ probate and estate administration team can advise on the appropriate application and evidentiary requirements. Book a consultation to discuss the missing original, the copy you hold and the estate’s circumstances. 

This article is general information only and not legal advice. For advice specific to your circumstances, please contact our team.