Original Will Lost or Damaged: Can You Still Apply for Probate in Malaysia?

A lost or damaged original will does not automatically rule out a grant of Probate. But it is no longer a standard application that can be filed on a copy alone without first working out how and when the original went missing.

The Probate and Administration Act 1959 (Act 97) contains specific provisions on Probate of a copy, a draft or the contents of a will, and on wills that have been destroyed. What matters is evidence: which documents still exist, when the will went missing, how it was lost, and whether its contents can be proved to the Court's satisfaction.

Scope of this article: it explains the civil administration and Probate process. If the testator was Muslim, state Syariah law, faraid and/or confirmation by the Syariah Court may also apply, and in some Muslim estates a civil grant of representation can still be part of the process. Do not assume every will follows the same route.

Quick summary

• Do not assume a copy counts the same as the original.

• Act 97 deals with a will that was lost or mislaid after the testator's death, or that cannot be produced for a sufficient reason.

• If a copy or draft can be shown to be identical to the original, Act 97 allows the possibility of Probate on that copy or draft in the circumstances it sets out.

• If there is no copy or draft, the contents of the will can still be a matter of evidence if they can be sufficiently proved.

• Act 97 has a separate provision for a will destroyed otherwise than by the testator or with the testator's consent.

• If the loss raises a dispute about revocation, authenticity or which version is the real will, the case can move out of ordinary Probate.

Why does the original will matter?

In an ordinary Probate application, the Court needs to know exactly which testamentary document is being proved.

The original helps show:

• the form of the document that was signed;

• its actual contents;

• the physical condition of the document;

• whether there are alterations or a codicil; and

• whether the document produced is the final, operative version.

When the original is missing, the evidence questions multiply.

Situation 1: the will was lost or mislaid after death

Act 97 specifically covers a will that has been lost or mislaid after the testator's death, or that cannot be produced for a sufficient reason.

If a copy or draft is produced and the Court is satisfied that its contents are identical to the original, the law provides a route for Probate on that copy or draft, subject to the limits the Act sets.

This does not mean every photocopy will be accepted. The identity of the contents and the circumstances of the loss still have to be proved.

Situation 2: no copy, but the contents are known

Act 97 also recognises the possibility of Probate of the contents of the will where those contents can be sufficiently established in the circumstances the Act allows.

Evidence that may be relevant depends on the case, for example:

• a draft kept by whoever prepared the will;

• a storage file or record;

• correspondence;

• witnesses who know what the will said;

• a digital copy; or

• other documents that help prove the final version.

Do not assume that any single type of evidence will always be enough.

Situation 3: the will has been destroyed

A destroyed will is treated separately from one that has merely been lost.

Where a will has been destroyed otherwise than by the act or with the consent of the testator, Act 97 allows Probate to be considered on a copy, a draft or its contents, if those contents can be proved by sufficient evidence.

How the document was destroyed, and by whom, can be a key fact. If it is alleged that the testator personally destroyed the will with a particular intention, the legal and evidential issues can change significantly.

What if there are two copies with different contents?

Do not choose one yourself because it looks more recent.

Check:

• the date of each document;

• the signatures and witnesses;

• any codicil;

• the records of whoever prepared or kept the will;

• whether a later document revokes an earlier one; and

• whether the original of any version still exists.

If family members disagree about which document is valid or operative, it may become a contentious Probate matter.

What should the executor do on discovering the original is missing?

1. Do not alter or throw away any document that still exists. Keep every copy, scan, draft, envelope and piece of correspondence.

2. Check where the will might be stored. The home, a safe deposit box, a law firm, a trustee, a will-writing company or anyone named as custodian.

3. Build a timeline. When the original was last seen, who held it, and when the loss was discovered.

4. Look for a codicil or other versions. Don't focus on one sheet of paper if the testamentary file contains several documents.

5. Identify the witnesses and whoever prepared the will. They may hold relevant records.

6. Get an assessment before filing an ordinary application. The loss has to be properly explained to the Court.

If you are also working out your wider duties as executor, the same care applies to protecting estate assets while the will question is being resolved.

Can I just use a photo or PDF of the will?

It may be evidence, but it is not an automatic ticket to Probate.

The questions are whether the copy or draft can be proved to reflect the original, and whether the legal conditions for a grant without the original are met.

What if the original turns up after a grant based on a copy?

The law contemplates that a grant made on a copy may be limited until the original is produced, in certain circumstances. If the original surfaces later, its effect on the existing grant has to be assessed, and it should not be kept back without telling the people administering the estate.

Does a missing original mean the will was revoked?

You cannot draw that conclusion automatically just because "we can't find the original".

However, the reason for the loss matters a great deal. A will that was simply mislaid is very different from a case where there is evidence the document was deliberately destroyed, or where revocation is disputed.

When is the case higher-risk?

Get advice promptly if:

• only one family member claims to have seen the will;

• there are several versions;

• the original was last known to be with the testator but cannot be found;

• it is alleged that the testator deliberately destroyed it;

• someone denies the signature or disputes that the will is genuine;

• beneficiaries under different versions have conflicting interests;

• a caveat has been entered; or

• assets need protecting while a dispute is unresolved.

Documents and information for an initial review

Prepare:

• the death certificate;

• every copy, draft or scan of the will;

• any codicil;

• the envelope or storage documents;

• correspondence with the lawyer, trustee or will writer;

• the names of the witnesses;

• a timeline of the loss;

• a list of executors and beneficiaries; and

• a summary of the main assets.

"When the original will can't be found, don't assume the copy you have can be used as normal. What has to be built is evidence of the final document, how the original was lost or damaged, and whether its contents can be proved well enough for the right Probate route," says Akmal Saufi Mohamed Khaled, lawyer and principal of ASCOLAW (Messrs Akmal Saufi & Co).

How ASCOLAW can help

If you are the executor and the original will cannot be found or has been damaged, ASCOLAW can review the copies, drafts and timeline you have, explain which route may be open and what evidence will be needed, and outline the scope of the Probate work before anything is filed. Have every copy or draft, the death certificate and a timeline of the loss ready, then fill in the ASCOLAW enquiry form below and our team will contact you.

Frequently asked questions

I only have a photocopy. Can I file for Probate straight away?

Don't assume the process is the same as with an original will. Act 97 allows Probate of a copy or draft in certain circumstances, but the identity of the contents and the reason the original cannot be produced both have to be proved.

The will was water-damaged but is still readable. Is that the same as a lost will?

Not necessarily. Keep the document exactly as it is, do not try to "repair" or rewrite it, and get a review of its physical condition and of what can still be proved.

What if a family member threw the will away?

That fact can be very significant. Act 97 deals with a will destroyed in certain circumstances, but evidence of who destroyed it, and whether the testator was involved or consented, can change the analysis.

I found an old copy and a newer copy. Which one is used?

Don't decide this yourself. The order of the documents, any revocation, any codicil and the evidence of which version was the final operative will all need to be assessed.

This article is general information only and is not legal advice. Every estate and every set of facts is different. Obtain specific advice from a qualified lawyer before acting on any part of it.

Related guides

• Grant of Probate vs Letter of Administration in Malaysia: Which One Applies?

• Can a Beneficiary Replace the Executor Named in a Will in Malaysia?

• Letter of Administration in Malaysia