Updated 4 November 2026
CM Law's Ultimate 50 List: Making a Will #29 - What happens if I die and my will cannot be found?
Explore CM Lawyers’ making a will service for help preparing and safeguarding your estate plan.
Knowing that someone made a will is not the same as locating the signed original. A missing document can complicate estate administration, but it does not automatically erase the deceased’s wishes. The immediate priorities are a thorough search, preservation of evidence and advice about the appropriate probate application.
Does a missing will automatically mean intestacy?
No. A missing original raises questions about its contents, execution and whether it was revoked. Depending on the evidence, the Supreme Court of NSW may admit a copy or a reconstructed will to probate. Intestacy becomes relevant where there is no effective will governing all or part of the estate.
The Court’s probate guidance expressly allows applications involving a copy. Do not distribute the estate on an assumption that the document never existed. The search and the legal assessment should come before deciding which people are entitled to inherit.
Where should the family begin searching?
Start with the deceased’s personal papers, secure storage and correspondence, looking for the original will and any codicils. Check copies for the preparing solicitor’s details. Ask appropriate family members what they know about storage, but distinguish a clear recollection of seeing a signed will from assumptions based on conversations.
Legal Aid NSW provides a search checklist and sample enquiries. My practical advice is to keep a dated record of each search, the person contacted and the response. Those details may later be needed in sworn evidence for the Court.
Make enquiries with solicitors the deceased used, banks holding documents, relevant accountants or advisers, NSW Trustee and Guardian and the Supreme Court. Provide identifying details and explain your relationship to the deceased. A negative response from one organisation is not proof that no will exists or that it was revoked.
The NSW Trustee and Guardian enquiry service checks whether it holds a will; it is not a complete register of every privately prepared will. If a legal practice has closed or changed names, investigate who now holds its safe-custody documents.
What evidence should be preserved during the search?
Keep every copy, draft, codicil, letter and relevant electronic file in the condition in which it was found. Record where and when each item was located and who last held the original. Avoid writing on documents or discarding older versions, because the sequence of documents may be legally important.
A scan showing signatures may be useful evidence, but it is still a copy. Access rights under section 54 allow specified people to inspect or obtain copies after death. A person holding the document may require evidence of identity and entitlement.
When is a missing will presumed to have been revoked?
Where the original was last in the deceased’s possession and cannot be found after death, a presumption of destruction with an intention to revoke may arise. It is rebuttable, not a conclusive finding. Evidence about custody is critical; a document lost by a solicitor or after death requires a different explanation.
The Court’s complex-probate guidance also addresses an unknown location at death, when possession by the deceased may be presumed. Do not assume the presumption disappears because nobody remembers where the original was stored. Investigate the custody history carefully.
What evidence can answer the revocation presumption?
Relevant evidence may include the deceased’s statements about their will, continuing relationships with beneficiaries, storage practices and the absence of changes suggesting a wish to revoke it. Evidence of accidental loss may also matter. The Court assesses the circumstances together; one relative’s belief about the deceased’s wishes is not necessarily enough.
Ask witnesses to identify actual conversations, dates and events rather than provide a shared family narrative. If a firm held the original, evidence of its searches and custody practices can be important. The explanation must address why the original is unavailable.
Can an executor apply using a photocopy or scan?
An executor named in a copy believed to represent the deceased’s last will may apply for probate of that copy. The application needs supporting evidence about searches, execution and non-revocation as relevant. A copy is not automatically accepted simply because it appears complete or every family member agrees with it.
The Court explains that a copy-will grant is limited until the original is found and proved. The executor must give the required undertaking. If no named executor can act, advice is needed about the applicant and appropriate form of administration.
What if there is no copy at all?
A lost will may sometimes be proved through other evidence, but the task is more demanding. The applicant must establish the relevant document, its terms and legal effect, including execution or the basis for recognising an informal will, and address revocation. Reconstructing wording is an evidentiary exercise, not an opportunity to rewrite wishes.
The Supreme Court’s probate checklist sets out requirements for a lost will without a copy. Solicitor files and witness evidence may assist. If only part can be proved, the legal consequences require careful assessment; missing pages do not produce an automatic outcome.
Is an unsigned draft treated like a copy of a signed will?
No. A draft may provide evidence of instructions, but that does not establish that it was signed or intended to operate immediately as the will. Section 8 of the Succession Act allows the Court to recognise some informal testamentary documents. The required intention must be proved; approval is not automatic.
Distinguish proof of a missing, properly executed original from an application asking the Court to dispense with signing requirements. Preserve emails and instructions that explain the document’s status. Do not add signatures or alter the draft to make it appear complete.
Who must be told about a copy-will application?
The applicant must identify people whose interests may be adversely affected, including those entitled on intestacy where relevant. Their consent or evidence of proper notice may be required. The Court needs an accurate picture of competing interests, rather than only the agreement of people who benefit under the proposed copy.
A disagreement may require contested probate proceedings. Obtain advice promptly about the correct response, including whether a caveat is appropriate. Calling or writing to the Registry alone does not necessarily prevent a grant, and a caveat requires a proper basis.
What should happen to the estate while the position is unresolved?
Take advice about protecting assets, maintaining necessary insurance and recording expenses while the correct grant is investigated. Avoid distributing disputed assets or assuming you can sell property without authority. If an urgent transaction or preservation issue cannot wait, ask whether a suitable limited grant or court order is available.
Keep estate records separate from personal finances and explain any immediate deadlines to the solicitor. Not every expense must wait for final distribution, but the person acting needs to understand their authority and keep evidence of decisions and payments.
What happens if no effective will can be proved?
If no effective will governs the estate, the NSW intestacy rules determine entitlement and an eligible person may need letters of administration. Friends and charities do not ordinarily inherit through those rules. An earlier will also needs assessment; it is not automatically revived merely because a later original cannot be found.
If an original or a later will is subsequently discovered, obtain advice immediately. Court guidance explains applications to prove an original after a copy grant or address a later will. Existing grants and distributions should not simply be ignored or privately rearranged.
What does a real NSW lost-will decision show?
In The Estate of Smith [2024] NSWSC 568, the Supreme Court admitted a will to probate despite the missing original. The deceased’s son sought review after a Registrar declined the copy application. The decision shows why evidence addressing the circumstances of the loss and possible revocation matters more than assumptions.
Leslie Smith’s 2000 will left the residue equally to his three children, the same result as intestacy. The solicitors who prepared it did not hold the original, but held later original attorney and guardianship documents. No other will was found. The Court considered the careful, complete disposition and the absence of an apparent reason to revoke.
On 10 May 2024, Hammerschlag CJ in Eq found the revocation presumption rebutted. The judgment allowed the motion’s costs from the estate on an indemnity basis without stating an amount. It did not decide that the solicitors had lost the will or that every missing original can be accepted.
What if you are alive and cannot find your own original?
Arrange a search and legal review rather than assume a photocopy provides the same certainty as the original. If you have testamentary capacity, preparing a fresh will may be appropriate. Review the whole plan, including any earlier documents, instead of signing an old copy without checking its terms and legal effect.
I would check executors, beneficiaries and changed circumstances before replacing the document. CM Lawyers’ will review service can help clarify the required steps. Keep reliable information about which document is current, and avoid creating unexplained competing versions.
How can you reduce the risk of a missing will?
Keep the signed original securely and tell your executor exactly where it is stored and how to obtain it. Options include an agreed solicitor storage arrangement, NSW Trustee and Guardian’s WillSafe or deposit with the Supreme Court. Keep copies and update location details whenever the original moves or is replaced.
Check access arrangements and fees with the custodian. For help preparing a will or addressing a missing document, contact CM Lawyers on (02) 9557 9000 or lawyers@cmlaw.com.au. Bring available copies, correspondence and a record of searches already completed.
General information for NSW readers, current at 4 November 2026. Obtain advice about the documents, evidence and appropriate estate application.
Key resources
