Updated 23 October 2026
Wills - Potential Problem #44: Not Keeping Copies
Keeping a copy of your will is important, but protecting the signed original is the priority. Your executor needs to know where the current original is held and how to obtain it after your death. A certified copy can provide a reliable record of the document; it does not automatically replace the original for probate.
If the original goes missing, your family may need to establish what happened to it, whether it remained your final will and whether you intended to revoke it. Clear storage arrangements, complete copies and a record of who holds the original can reduce uncertainty at an already difficult time.
1. Why the signed original matters
For an ordinary NSW probate application, the Supreme Court requires the original will and any codicils. A codicil is a document that amends an existing will. The original documents are filed with the application and retained by the Court. Lodging an application online does not remove that requirement.
A photocopy, scan or photograph reproduces the document. It does not become the original simply because it contains images of the signatures. Equally, losing the original does not automatically mean there was no valid will. A different application and additional evidence may be needed to prove it.
Keep all pages together and preserve the document’s condition. Removing staples, adding handwritten changes or separating an amendment from the will can create questions about what was signed and whether anything was later altered. Ask your solicitor before changing or reorganising the original.
2. What a certified copy can establish
Certification records that the copy has been checked against the document presented as the original. It helps distinguish a checked reproduction from an unchecked printout. The NSW Justice of the Peace Handbook explains that certification concerns the accuracy of the copy, rather than guaranteeing the original’s authenticity or legal validity.
A certified copy does not prove that the will-maker had capacity, that nobody exerted undue influence, or that the will was never replaced or revoked. It also does not compel the Court or every organisation to accept it instead of the original. Check the requirements of whoever needs the document.
Copies should be complete, legible and clearly identified. Include any valid codicils with the record. Do not sign a photocopy again as a supposed backup: a newly signed document can introduce uncertainty about whether another will was intended.
3. Christine on keeping originals in safe custody
I always stress to clients how important it is to keep their original will in our safe. At CM Lawyers, we keep clients’ originals in safe custody and always issue certified copies. I want clients to have a copy they can read and refer to, while the signed original is kept securely.
The other part of that conversation is making sure the executor knows where to come. A will can be safely stored and still be difficult to find if nobody knows who holds it. Tell your executor that the original is with us, and keep our contact details with your copy.
I also explain that the certified copy is useful, but it is not a reason to discard the original. Keeping both serves different purposes: the copy provides an accessible record, and the original remains available for the legal process when it is needed.
4. What to do if the original cannot be found
Start with a documented search rather than assuming the will has been destroyed. Legal Aid NSW recommends enquiries with the deceased’s lawyers, banks, accountant or financial adviser, NSW Trustee and Guardian and the Supreme Court. Search personal papers and secure storage locations too.
Record where you looked, whom you contacted and their responses. Preserve copies, correspondence, storage receipts and details of any later will. If the drafting firm has closed, Legal Aid NSW suggests contacting the Law Society of NSW for information about a successor practice or the location of its files.
The NSW Trustee and Guardian enquiry service can help establish whether it holds a will. It is not a search of every privately held will in NSW. A negative response does not establish that no will exists.
If someone is holding the original but refuses to release it, that is different from a lost will. The Court’s probate checklist addresses applications for production. Obtain advice about securing the document instead of treating a known original as missing.
5. When a copy may be admitted to probate
The executor named in a copy may apply for probate of that copy if the original cannot be located. The application must explain the searches and provide the necessary supporting evidence. People adversely affected by the proposed grant may need notice or to give consent.
Under the Court’s guidance on complex probate proceedings, a missing original last held by the deceased can raise a rebuttable presumption that they destroyed it intending to revoke it. Where its last location is unknown, the Court also requires evidence addressing that presumption. The fact that a copy survives does not settle the issue.
Evidence may concern the document’s custody, searches, the deceased’s statements and relationships, or circumstances explaining an accidental loss. If a solicitor or another person held the original, their evidence may be important. The Court assesses the circumstances; it does not simply choose whichever distribution seems fairest.
A grant on a copy is generally limited until the original is found and proved. The applicant must undertake to produce it if it is later located. Seek advice promptly if the original or a later will emerges after a grant has been made.
6. A real NSW case about a missing original
In The Estate of Smith (2024), a son applied for probate using a copy of his father’s will because the original could not be found. The registrar initially declined the application on the material available.
On review, the Supreme Court considered whether the evidence overcame the presumption of revocation. The will comprehensively distributed the estate, the solicitors held other original documents signed by the deceased, and no other will had been found. Revocation would not have changed the beneficiaries: his children would receive equal shares on intestacy too.
The Court admitted the copy to probate. The case shows that a missing original need not defeat the will, but supporting evidence and an appropriate application can still be necessary. It does not mean every photocopy will be accepted, or that keeping copies removes the need for secure original storage.
7. What happens if there is no copy either
The Supreme Court’s probate checklist recognises applications to prove a lost will where no copy remains. Evidence must establish the document, its terms, execution or testamentary intention, and that it was not revoked. A reconstruction may be required.
That process can be more difficult than relying on a complete copy. Family memories alone may be insufficient. If no effective will can be established, intestacy rules may determine distribution. Do not assume an earlier will automatically revives when a later original disappears.
8. Make storage part of every will review
Keep a separate note identifying the will’s date, the original’s custodian and contact details. Give your executor and substitute executor enough information to find it. If you retain a digital copy, use secure storage and plan lawful access; a file on a locked device may be difficult to retrieve.
After updating your will, replace the copies used for reference and tell the relevant people about the new storage arrangements. Ask your lawyer how superseded originals and copies should be handled. Do not destroy documents after a death while trying to decide which version applies.
Review custody details when you move house, change solicitors or appoint a different executor. NSW Trustee and Guardian’s WillSafe is another storage option. Wherever the original is kept, security and discoverability both matter.
CM Lawyers’ wills and estates team can help review your will, arrange safe custody and provide certified copies. If an original is already missing, contact our team to discuss the searches and evidence needed before the estate is distributed.
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