Lost or Missing Original Will: How to Get Probate of a Copy in NZ

Probate is normally granted on the original will

A grant of probate is the High Court’s confirmation that a will is valid and that the executor may administer the estate. In the ordinary case, the original signed will is lodged with the application, and the Registry retains it. So the first problem when an original cannot be found is evidential: how do you prove to the court what the will said, and that it is still the deceased’s operative will?

The answer is that you apply for probate of a copy (or, if no copy survives, a reconstruction). This is well-established — a lost original does not defeat a valid will — but it requires more evidence than a standard application. See our complete guide to probate for how the ordinary process works.

The three things you must prove

To admit a copy of a will to probate, the evidence (given by affidavit) must satisfy the court of three things:

1. Due execution — that the will was validly signed and witnessed under section 11 of the Wills Act 2007. This is proved the same way as for any will (High Court Rules 2016, rr 27.16–27.17): usually by an affidavit from an attesting witness, or by the presumption of due execution where the will appears regular on its face. See what makes a will valid in NZ.
2. The contents — what the will actually said. A copy (a photocopy, a solicitor’s file copy, a scan, or a draft the deceased approved) is the best evidence; where no copy exists, the terms must be proved by other evidence.
3. Non-revocation — that the will was not revoked before the deceased died. This is where lost-will applications succeed or fail.

The presumption of revocation — and when it does not apply

This is the crux. Where a will was last known to be in the deceased’s own possession and cannot be found after death, the common law presumes the deceased destroyed it intending to revoke it. The will is not automatically invalid, but you must produce evidence to rebut that presumption — for example, statements the deceased made confirming the will still stood, the absence of any reason to revoke, evidence the loss was accidental, or that others had access to where it was kept.

The critical distinction: the presumption only arises if the original was in the deceased’s custody. If the will was held by someone else when it went missing, there is nothing to suggest the deceased destroyed it, and the presumption does not apply at all. That makes the application far simpler. Three scenarios show the difference:

Scenario 1 — Lost while in the deceased’s possession (hardest)

The deceased kept the original at home, and it cannot be found. The presumption of revocation applies, and the application must rebut it with evidence about the deceased’s intentions and the circumstances of the loss.

Scenario 2 — Lost in a third party’s custody (no presumption)

The original was held by the deceased’s solicitor, bank, or another custodian, and was lost or destroyed while in their keeping (this does occasionally happen). Because the will was never in the deceased’s control, the presumption of revocation does not arise. The person who had custody swears an affidavit setting out the facts — that the will existed, was validly executed, its terms, and how it came to be lost — and the copy is admitted.

Scenario 3 — Lost by the Probate Registry (rare, and instructive)

Occasionally the court itself loses an original will after it has been filed. Because the will was in the Registry’s custody — not the deceased’s — the presumption of revocation again does not apply. And there is a further advantage: the Registry has already sighted the original, so its existence and apparent validity are not in doubt. In that situation the Registrar may issue a memorandum setting out what happened, which stands in place of the affidavit that would otherwise be required from whoever had custody.

A worked example

In a recent matter, an executor first tried to obtain probate themselves, without legal advice. They lodged the correct application with the original will. The Registry examined the will but returned the original to the executor because there were defects in the application they had prepared.

The executor then instructed a lawyer, who corrected the application and re-filed it — sending the original will to the Registry by courier, with proof of delivery. The Registry then lost the courier package, despite the tracking showing it had arrived.

Because the Registry had already sighted the original during the first application, and the will had been in the Registry’s custody (not the deceased’s) when it was lost, none of the usual obstacles applied — there was no presumption of revocation, and no doubt about the will’s existence or execution. The Registrar issued a memorandum recording these facts — that the original had been sighted, returned, re-filed, and then lost in the Registry’s custody — and that memorandum stood in place of the affidavit of loss that would ordinarily be sworn by the custodian. Probate was then granted on a copy of the will.

Two lessons stand out. First, a lost original — even one lost by the court — does not defeat a valid will. Second, the defective DIY application is what started the chain: had the application been prepared correctly the first time, the will would not have been returned and re-couriered. See DIY probate vs using a lawyer.

How a probate-of-a-copy application works

1. Locate the best available copy — a solicitor’s file copy, an executed duplicate, a scan, or an approved draft. The better the copy, the stronger the application.
2. Gather evidence of due execution — ideally an affidavit from an attesting witness, or reliance on the presumption of due execution where the copy appears regular.
3. Address non-revocation — if the original was last in the deceased’s possession, assemble evidence to rebut the presumption of revocation. If it was lost by a third party or the Registry, an affidavit from the custodian (or a Registrar’s memorandum) sets out the facts and the presumption does not arise.
4. File the application for probate of the copy, exhibiting the copy and the supporting affidavits, and explaining the loss of the original.
5. Respond to any requisitions from the Registry, which may seek further evidence before admitting the copy.

Because a lost-will application turns on evidence and can attract requisitions, it is one of the situations where legal preparation genuinely reduces risk and delay. Simply Probate prepares probate applications — including probate of a copy where the original is lost — for a fixed fee from $699 + GST.

Frequently asked questions

Can you get probate if the original will is lost in NZ?

Yes. You apply for probate of a copy, supported by affidavit evidence proving the will was validly executed, proving its contents, and proving it was not revoked. A lost original does not, by itself, defeat a valid will.

What is the presumption of revocation?

Where a will was last known to be in the deceased’s own possession and cannot be found after death, the law presumes the deceased destroyed it to revoke it. The presumption is rebuttable with evidence, and it does not arise at all if the will was held by someone else — a solicitor, or the court — when it was lost.

What evidence do you need to prove a lost will?

A copy of the will (or evidence of its contents), evidence that it was validly signed and witnessed (Wills Act 2007, s 11; High Court Rules 2016, rr 27.16–27.17), and evidence that it was not revoked. Where a custodian lost the original, they swear an affidavit of the facts; where the Registry lost it after sighting it, the Registrar may issue a memorandum instead.

What happens if the Probate Registry loses the will?

Because the will was in the court’s custody rather than the deceased’s, there is no presumption of revocation, and the Registry has already sighted the original. The Registrar can issue a memorandum recording what happened, which supports a grant of probate on a copy.

Is a copy of a will legally valid in NZ?

A copy is not the will, but the High Court can grant probate of a copy where the original is lost, once satisfied by evidence of execution, contents, and non-revocation. The grant then operates on the terms proved by the copy.