All is not necessarily lost. There are circumstances where an unsigned copy or photocopy of a signed Will can be located. However, after searching high and low the original is nowhere to be found.
A court does have the ability to fix the situation. A specific remedy is set out in Rule 75.02 of the Rules of Civil Procedure. A person attempting to have the copy proven to be the original would need to make an application. That application is usually supported by written evidence in the form of a detailed Affidavit. In the Affidavit, which of course is subject to attack by those of a different view, the following evidence must be put forward:
- Why can the original Will not be found, and specifically what efforts have been made to locate it?
- Proving that the testator i.e. the willmaker never meant to revoke or cancel the Will such as by tearing it up and that is the reason it that cannot be found.
- Explaining in as much detail as possible why the copy being proposed as the original Will is indeed the last Will of the testator aka the will maker.
If the copy one is attempting to prove as the original Will is being objected to by any other person having a financial interest in the estate, clearly the evidentiary level of proof will rise significantly.
That is why many law firms including our own offer storage of one’s Will as a free additional service to the preparation of the documents. All of our Wills, and this goes for most lawyers, are kept in a central fireproof location indexed with controls for the release and retention of these documents.
