Updated 22 October 2026
Wills - Potential Problem #45: Overlooking Digital Copies
Keeping digital copies of your will and important documents can help your executor identify your wishes and organise your estate. However, a scan does not automatically replace the original signed will. In NSW, the usual probate application still requires the original will and any codicils, even though supporting documents are uploaded online.
The practical approach is to protect the original, keep clear copies and tell your executor how to locate the documents. This reduces avoidable searching and confusion. A well-organised folder is useful, but it cannot correct an invalid will or guarantee that probate will be granted without further questions.
Why the original will still matters
Legal Aid NSW’s probate guide explains the distinction between uploading documents and filing the original. Applicants upload the required material, then lodge the original will and codicils with the Supreme Court registry by post or in person. The Court retains the original will.
Keep copies before lodging documents and follow the instructions for your application. A codicil is a separate document changing part of a will, so it also needs to be located. If the original is missing, obtain advice about proving a copy rather than submitting a photocopy as though it were the original.
Digital copies and certified copies serve different purposes
A digital copy is an electronic image, such as a PDF scan. It can be shared with your solicitor and helps identify executors, beneficiaries and relevant dates. Scan the complete signed document, including witness details and all pages. An unsigned draft is not an equivalent record of the executed will.
A certified copy records that the copy corresponds with the document presented as the original. The NSW Justice of the Peace Handbook explains the limits of this process. Certification does not establish that a will is legally valid, remains the latest will or has never been revoked.
The Law Society of NSW’s certification guidance also explains that the receiving organisation determines its requirements. Check who may certify the document and whether it accepts an electronic version. A scan of a certified copy may be useful, but acceptance depends on the recipient.
Why Christine always provides certified copies
When I prepare a will, I always give my clients certified copies. I want them to have a clear record of what they have signed, and to understand why the original still needs to be kept safely. Having a copy ready makes it easier to refer to the document without repeatedly handling the original.
My advice is straightforward: keep your copies organised and make sure your executor knows where the original is. A document can be stored very safely and still be difficult for the family to find. I explain that certified copies and scans support the plan; they do not automatically remove the need for the original when probate is required.
What happens if the original cannot be found
Search the deceased’s papers and make enquiries with their solicitors and any other known document custodian. Preserve copies, correspondence about storage and records of the searches. Avoid assuming that a missing original means there was no will.
The Supreme Court’s guidance on complex probate explains the additional evidence required for a lost original. Depending on the circumstances, the application may need affidavits about custody, searches, loss and the deceased’s intentions. Where an original was last traced to the deceased’s possession but cannot be found after death, a rebuttable presumption of revocation may arise.
A copy can help establish the will’s contents, but the surrounding evidence remains important. The Court must be satisfied that the relevant requirements are met. A grant based on a copy may be limited until the original is proved; finding the original later requires further attention.
A real NSW case about a missing original
In Jaksic-Repac v Dundjerski (2025), the original will could not be found after the deceased’s death. A relative argued that it should be presumed revoked. Evidence included copies supplied to family members and the deceased’s statements that her solicitors held her current will.
The NSW Court of Appeal upheld probate of the copy. The original had not been shown to have been last in the deceased’s possession, so the presumption did not arise. The Court also concluded that the evidence would have rebutted it in any event. The High Court refused special leave to appeal on 9 April 2026.
The lesson is to preserve copies and reliable custody records. The decision does not make every scan or certified copy an automatic substitute for an original. Each missing-will application depends on its evidence.
How incomplete documents can delay probate
In a statement dated 21 July 2025, the NSW Chief Justice reported that more than 2,000 requisitions remained unanswered as at June 2025. A requisition is a request to address problems or supply further information. The statement identified photocopies filed instead of originals and insufficient evidence for copy-will applications among common issues.
That figure covers requisitions generally, not just missing wills, and is a historical snapshot rather than the current backlog. It shows why complete documents and prompt responses matter. Keeping scans helps organise the paperwork, but satisfying the Court’s requirements is what allows an application to progress.
Six steps to organise your documents
1. Confirm the original’s location. Record who holds it, their contact details and any custody reference. Tell your executor and substitute executor. Update the record if documents move or your solicitor changes.
2. Make complete copies. Check that every page is readable and belongs to the same signed document. Keep certified copies available for recipients that request them. Avoid altering or annotating the original yourself.
3. Label versions clearly. Use the signing date and distinguish signed copies from drafts and earlier documents. Ask your solicitor how to handle superseded wills; do not quietly overwrite records that may later be relevant.
4. Protect electronic storage. Restrict access and keep a separate backup. The Australian Government’s personal cyber security handbook recommends multi-factor authentication, strong account security and regular backups of important information.
5. Plan access after death. A folder locked behind your personal phone may be inaccessible when needed. Arrange an appropriate recovery or access process. Keep passwords outside the will: a will admitted to probate becomes a public document.
6. Keep supporting records current. Maintain a separate list of assets, liabilities and professional contacts. Review it after significant changes. Documents relating to superannuation and insurance may need separate attention because your will does not necessarily control those benefits.
An electronic draft is different from a digital copy
Typing wishes into a document or changing a scanned will does not automatically create a valid replacement. NSW law ordinarily requires proper signing and witnessing. The Court can recognise an informal document under section 8 of the Succession Act in appropriate circumstances, but this requires evidence and a court decision. Arrange a properly prepared update instead of relying on an edited file.
After probate, organisations may request a certified copy of the grant rather than just the will. The Supreme Court’s copies and access guidance explains this distinction and the separate process for obtaining a sealed court-authorised copy, called an exemplification.
How much a will costs at CM Lawyers
A straightforward single will starts from $440 including GST. We confirm your fee in writing before we start.
Complex trusts, additional documents and other work require a separate quote; confirm the fee for your circumstances before proceeding.
Our wills and estates team can help prepare your will and explain the arrangements for originals and certified copies. Contact CM Lawyers in Marrickville to organise an appointment or discuss an existing will whose original cannot be located.
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