Missing Wills: Legal Pathways for Estate Administration in NSW

Introduction

A missing will after death triggers a legal presumption that the deceased revoked it. Without the original document, beneficiaries and next of kin may need to apply for letters of administration in the Supreme Court of NSW, leading to estate distribution under intestacy rules.

Conducting a thorough search before applying can prevent unnecessary costs, delays, and family disputes. The practical steps and legal pathways available help prospective administrators secure a grant of administration in New South Wales.

Interactive Tool: See If You Qualify for Letters of Administration in NSW

Legal Risks of a Missing Will for Prospective Estate Administrators in NSW

The Presumption of Revocation

When the deceased last held the original will and it cannot be found after death, the court may presume that the deceased destroyed it intending to revoke it. This is known as the presumption of revocation.

The presumption does not apply automatically. Evidence may displace it if it shows that the deceased continued to regard the will as operative. The following evidence may all assist the court:

• statements about a current will;
• communications with a solicitor; and
• evidence about how the document was stored.

A thorough search is important because the outcome may affect whether the estate is dealt with under the will or according to intestacy, in which case it may be helpful to get advice from our wills and estate planning lawyers on missing-will and intestacy issues.

Case Study of Jaksic-Repac v Dundjerski

The 2 December 2025 New South Wales Court of Appeal decision in Jaksic-Repac v Dundjerski [2025] NSWCA 256 (‘the Jaksic-Repac v Dundjerski case’) concerned a $24 million estate and a missing original will. The court found that the presumption of revocation did not arise because the evidence did not establish that the deceased had possessed the original will after signing it.

The court also found that the presumption would have been rebutted by evidence of the deceased’s continuing intention for the will to operate. The deceased had sent a copy to a beneficiary and told her solicitor that she had a current will.

The case shows why evidence about possession, communications and intention can affect the administration of an estate.

Financial & Administrative Consequences

A missing will can cause the estate to be distributed under intestacy laws, which may produce a different outcome from the deceased’s intended plan. The uncertainty can lead to:

• disputes between beneficiaries;
• contested probate proceedings; and
• delays in estate administration.

Executors may face uncertainty about their authority and additional legal obligations while the court determines which document, if any, should govern the estate.

In addition, legal proceedings, court fees and administration costs can reduce the estate available to distribute. Disputes may also place strain on family relationships and delay payments to beneficiaries.

Statutory Rights of Family Members & Next-of-Kin to Inspect a Will

Eligible Persons Under the Succession Act

Section 54(2) of the Succession Act 2006 (NSW) (‘Succession Act‘) identifies the people who may inspect a deceased person’s will or obtain a copy. 

A person with possession or control of the will must allow access to an eligible person, which may include:

• anyone named or referred to in the current or an earlier will;
• the surviving spouse, de facto partner, descendant, parent or guardian of the deceased;
• a person entitled to a share of the estate under intestacy;
• a parent or guardian of a minor referred to in the will or entitled under intestacy;
• a person, including a creditor, with a claim against the estate;
• a person managing the estate under the NSW Trustee and Guardian Act 2009 (NSW) (‘NSW Trustee and Guardian Act‘); or
• an attorney appointed under an enduring power of attorney.

Once the Supreme Court of NSW grants probate, Section 30 of the Probate and Administration Act 1898 (NSW) (‘Probate and Administration Act‘) also permits the will to be inspected under the Court’s control.

Benefits of Document Inspection

Inspecting the will can show whether a person has been included or excluded from the deceased person’s estate. A named beneficiary can also assess whether the provision made under the will appears adequate.

Access may help an eligible person consider whether to challenge the will or make a claim against the estate. 

A person seeking a copy may lodge a request with the Probate Registry of the Supreme Court of New South Wales, although the copy may be supplied at that person’s expense.

Practical Search Steps for Prospective Estate Administrators in NSW

Search Personal Possessions & Digital Files

Begin by checking the deceased’s personal possessions for the original will and any correspondence about its preparation or storage. Relevant locations may include:

• filing cabinets;
• desk drawers;
• home safes;
• safe deposit boxes; and
• locked storage areas.

Email accounts, computers and cloud storage may also contain a digital copy of the will or messages between the deceased and a solicitor. 

Keep records of the locations searched and any documents or correspondence found, as these may assist with the estate administration process before someone needs to apply for letters of administration.

Contact Banks & Secure Storage Providers

Banks may hold a will in a safe deposit box or another secure storage facility. Contact each financial institution connected with the deceased to ask whether a box or document storage service was used.

Access to a safe deposit box will require a certified copy of the death certificate and identification. Bank staff can explain their requirements for checking the box and releasing documents connected with the deceased’s estate.

Consult Solicitors & the NSW Trustee & Guardian

A solicitor who prepared the will may hold the original document in secure storage. Contact the deceased’s solicitor directly, or make enquiries with local law firms in the area where the deceased lived, as firms may hold wills for clients.

The NSW Trustee and Guardian also provides a will storage service. An enquiry can be made using details such as the deceased’s name, date of birth and death certificate to check whether the will is held in its records.

Options for Family Members When the Original Will Remains Missing

The Rules of Intestacy

When a will cannot be found after all search steps have been completed, the deceased may be treated as having died intestate. The estate is then managed and distributed according to the rules of intestacy in Chapter 4 of the Succession Act.

The statutory order generally gives priority to:

• Spouse or de facto spouse;
• Spouse or de facto spouse together with eligible children;
• Children, including the issue of a deceased child; and
• Parents, siblings, grandparents, and eligible aunts or uncles.

Each category must be exhausted before the next category is considered. Only a person entitled to all or a share of the estate will generally be eligible to apply for letters of administration.

The Role of Letters of Administration

A grant of Letters of Administration is a legal document issued by the Supreme Court of New South Wales. It appoints an administrator to manage the deceased estate where the deceased died without leaving a will.

The administrator may use the grant to:

• Collect the deceased’s assets;
• Pay debts owed by the estate; and
• Distribute the remaining assets to the proper beneficiaries.

A grant may not be needed for every asset. Some asset holders may release modest amounts after the next of kin proves their entitlement. 

Real estate held solely by the deceased, or as a tenant in common, requires a grant to deal with that property.

Reliance on a Copy of the Will

A photocopy may support an application for probate when the original will cannot be located. The court may accept the copy if sufficient evidence indicates that the deceased did not destroy the original intending to revoke it.

Essential Steps to Apply for Letters of Administration in NSW

Time Limits & Affidavits of Delay

Under Part 78 Rule 16 of the Supreme Court Rules 1970 (NSW) (‘Supreme Court Rules‘), an application for a grant of administration should be filed within six months from the deceased’s date of death. 

An application filed after that period must include an explanation for the delay. The explanation may be included in the administrator’s affidavit or provided in a separate affidavit of delay. 

Publication of the Notice of Intended Application

A notice of intended application must be published through the NSW Online Registry before the summons for letters of administration is filed, and Section 42 and Section 109 of the Probate and Administration Act require at least 14 days notice before the summons is filed.

Part 78 Rule 3 and Rule 4 of the Supreme Court Rules identify the NSW Online Registry as the valid publication method. The notice uses the approved UCPR Form 116 and gives relevant parties an opportunity to respond, including:

• Creditors who may have a claim against the estate
• Relatives who may make a family provision claim
• People who may challenge the validity of a will
• People who know of a later or alternate will

The applicant should search the public probate notices before publication to check for a competing or duplicate application.

Court Requisitions & Responses

The Supreme Court of New South Wales may issue requisitions by email if an application is incomplete or contains incorrect information, and the applicant must respond by re-filing a form or lodging a separate affidavit addressing the identified problem.

Letters of administration will not be granted until the requisition has been answered; the court may issue further requisitions if the response does not resolve the issue, and an application may be dismissed if the applicant fails to respond or does not request additional time.

Conclusion

A careful search for the original will can clarify whether the estate should proceed through probate, administration with the will annexed, or intestacy. Keeping evidence of enquiries and meeting the Supreme Court of NSW procedure can reduce delay, disputes and unnecessary estate costs.

With these steps in mind, contact our wills and estate lawyers at LawBridge to discuss the estate’s circumstances and the appropriate court process. Law Bridge’s lawyers provide practical legal guidance to help administrators assess the available evidence, prepare for estate administration and address issues that may arise before seeking a grant.

Frequently Asked Questions