Can a copy of a lost Will be used to administer an estate?
A Will is one of the most important documents a person will sign during their lifetime. It records how they wish their estate to be distributed after death and who should be responsible for administering their estate. However, problems can arise where the original Will cannot be found.
In Lynch as Administrator of Estate of Paul Francis Bugg,[1] Daly AsJ of the Supreme Court of Tasmania was required to consider whether a copy of a Will could be admitted where the original Will had been lost after the will-maker’s death.
This case is an important reminder that a missing original Will does not necessarily mean that the estate must be administered as if there was no Will (i.e. in accordance with the rules of intestacy). However, it also demonstrates that a copy of a Will is not automatically accepted. The Court must be satisfied that the original Will existed, that it was validly executed, that its terms can be proved and that it was not revoked.
What is a lost Will application?
When a person dies leaving a Will, the original signed Will is ordinarily required for a grant of probate or letters of administration with the Will annexed. This is because the original document provides important evidence that the Will was properly signed and witnessed, and that it remained the deceased’s final testamentary document.
Where the original Will cannot be produced, the Court may still be able to admit a copy to proof. In Tasmania, rule 54 of the Probate Rules 2017 (Tas)[2] allows the Court to make such an order where the original Will is not available. A similar rule can be found in other jurisdictions in Australia. However, before the Court can make such an order, the following matters must be established and evidenced to the Court:
- there was a Will in existence
- it revoked all earlier Wills
- any presumption of destruction by the testator has been rebutted.
- there is evidence of its terms
- There is evidence of due execution[3]
These requirements are important as they protect the deceased’s testamentary intentions while reducing the risk that an incomplete, altered or revoked document is treated as the final Will.
The Will
After Paul Francis Bugg signed his Will on 10 May 2019[4], the original document was held in the strong room of the solicitors who prepared it. After his death on 21 November 2024[5], the original Will was retrieved from the solicitor’s strong room on 12 December 2024.[6] The firm arranged for, and retained for its records, a certified copy of the original Will.[7] This step later became vital as the certified copy provided the Court with evidence of the terms and appearance of the lost original document.
The loss of the original Will
The original Will was subsequently sent to the proposed administrator by registered post.[8] Despite numerous enquiries, Australia Post ultimately treated the package as lost in transit and thus confirming it was never received by the proposed administrator.[9]
This chronology made a significant impact on the matter. It proved that there was actually a Will in existence.
Evidence before the Court
The Court was satisfied that the original Will had existed. It had been sighted after his death, retrieved from the solicitor’s strong room, copied for the firm’s records and then lost in transit during the administration process[10]
The Court was also satisfied that the original Will had been properly executed. Although there was no direct evidence in relation to the signing of the Will, the certified copy showed that the Will had been signed by Mr Bugg in the presence of two witnesses. Each witness had attested that Mr Bugg signed the Will in their presence and that they signed in the presence of each other.[11]
Daly AsJ accepted that the certified copy strongly supported a finding that the original Will had been executed in accordance with the formal requirements of the Wills Act 2008 (Tas).[12] The Court also noted that production of an apparently duly executed Will, rational on its face, gave rise to a presumption that the testator had adequate testamentary capacity.[13] The terms of the Will were also able to be proved. The certified copy was accepted as an accurate and complete copy of the original Will.[14]
Had the Will been revoked?
A missing original Will can raise a concern that the will-maker destroyed it with the intention of revoking the Will. This is one of the reasons why the Court requires evidence about the custody of the original Will and the circumstances in which it disappeared.
In this case, the Court was satisfied that the absence of the original Will had been adequately explained.[15] Given the circumstances, the Court was satisfied that it could not have been destroyed by Mr Bugg with an intention to revoke it. The Will also expressly revoked all previous Wills and described itself as Mr Bugg’s last Will and testament.[16] The Court accepted that the presumption of revocation did not arise and, in any event, was rebutted.[17]
The Court’s decision
Daly AsJ was satisfied that the necessary matters had been established. The Court ordered that the copy of Mr Bugg’s Will dated 10 May 2019 be admitted to proof until the original could be brought into Court.[18] This then allowed the administration of the deceased’s estate to proceed according to the deceased’s Will and testamentary intentions, despite the loss of the original document.
A lost will is different from an informal Will
The decision should not be misunderstood as meaning that any copy, draft or electronic document will be treated as a valid Will. In Lynch, there was evidence that Mr Bugg had signed a formally executed Will. The issue was not whether an informal document should be accepted as a Will. The issue was whether the contents and validity of a formally executed Will could be proved without producing the original.
Informal Will applications involve different legal principles. They usually concern a document that does not comply with the ordinary signing and witnessing requirements, such as an unsigned document, handwritten note, draft Will, text message or electronic file. By contrast, Lynch concerned a lost original Will where a certified copy and supporting evidence were available.
An important reminder
Lynch is an important reminder that the safe storage of original Wills is critical. A carefully prepared Will can still create uncertainty if the original cannot be located after death. The decision also demonstrates the importance of keeping clear records. In this case, the certified copy, the solicitor’s evidence, the Australia Post records and the searches undertaken all assisted the Court in determining that the copy should be admitted to proof.
For will-makers, the case highlights the importance of storing the original Will securely and ensuring executors know where it is held. A copy of the Will can be useful, but it should not be treated as a substitute for the original.
For executors and administrators, the case is a reminder not to assume that an estate must be administered on intestacy simply because the original Will cannot be found. If there is a copy of the Will, legal advice should be obtained about whether an application can be made to prove the copy.
For professional custodians, the case highlights the value of careful file management, certified copies, custody records and secure delivery procedures. Before an original Will is released or transported, consideration should be given to whether it is necessary to move the original at all.
Ultimately, a lost Will can delay an estate, increase costs and create uncertainty for beneficiaries. However, where there is strong evidence of the original Will’s existence, terms, execution and loss, the Court may still allow the estate to be administered in accordance with the deceased’s testamentary intentions.
Final thoughts and next steps
Should you wish to discuss any aspect of probate, estate administration or a missing original Will, please reach out to our experienced Estate Planning & Probate team by calling 1800 867 113, or to organise a confidential discussion at a time that suits you, please click here.
[1] Lynch as Administrator of Estate of Paul Francis Bugg [2026] TASSC 34.
[2] Probate Rules 2017 (Tas) r 54; Lynch as Administrator of Estate of Paul Francis Bugg [2026] TASSC 34, [3]–[4].
[3] The Estate of Robert Lindley Palfreyman [2024] TASSC 32; Curley v Duff [1985] 2 NSWLR 716.
[4] Lynch as Administrator of Estate of Paul Francis Bugg [2026] TASSC 34, [2].
[5] Ibid [8].
[6] Ibid.
[7] Ibid [13].
[8] Ibid [8].
[9] Ibid.
[10] Ibid [9].
[11] Ibid [10].
[12] Ibid; Wills Act 2008 (Tas) s 8.
[13] Lynch as Administrator of Estate of Paul Francis Bugg [2026] TASSC 34, [11].
[14] Ibid [12]–[13].
[15] Ibid [17].
[16] Ibid [16].
[17] Ibid [18].
[18] Ibid [20].
About the authors
Evelyn is a Special Counsel in Avant Law's Estate Planning & Probate team, based in Perth.
Evelyn has over 20 years' experience in succession, with a focus on estate planning and estate administration, across multiple jurisdictions. She works closely with clients to guide them through the process; taking the time to explain their options and translating their goals into a clear, appropriate and well-considered estate plan.
Her practice covers the full breadth of estate planning and administration, including Wills (from straightforward to complex instruments incorporating testamentary trusts, special disability trusts, protective trusts, life estates or rights of residence), substitute decision making instruments, advance health directives and letters of wishes. Evelyn also advises on non-estate assets, such as the distribution of superannuation death benefits and the succession of control of discretionary trusts. She has particular expertise in identifying and addressing family provision risks to protect a client's estate.
Alannah is a Paralegal in Avant Law’s Estate Planning & Probate team, based in Perth.
Since commencing in Wills and Estates in December 2024, Alannah has assisted clients and solicitors with a broad range of estate planning and deceased estate matters. She is committed to providing organised and professional support, helping to ensure clients receive clear guidance throughout the legal process.
Alannah’s work includes assisting with the preparation of Wills, Enduring Powers of Attorney, Enduring Powers of Guardianship, Advance Health Directives, probate applications, estate administration, and estate litigation matters. She works closely with the firm’s lawyers to prepare estate planning documents and support the administration of deceased estates.
Alongside her role at Avant Law, Alannah is currently studying a Bachelor of Laws, continuing to develop her knowledge and skills in estate planning and succession law.
Legal services are provided by Avant Law Pty Ltd (ACN 136 429 153) (Avant Law). Liability limited by a scheme approved under Professional Standards Legislation. Legal practitioners employed by Avant Law are members of the scheme.
The information in this article does not constitute legal advice or other professional advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of this content. The information in this article is current to 10 August 2026.