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Stealing or Destroying a Will or Codicil

Stealing or destroying a will or codicil is an offence under Section 135 of the Crimes Act 1900 which carries a maximum penalty of 7 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  • You stole, or for any fraudulent purpose destroyed, cancelled, obliterated or concealed the whole or any part of a will, codicil or other testamentary instrument.

The offence applies to real estate as well as personal property and whether or not the testator is living or deceased.

You cannot be found guilty if, before being charged, you disclosed on oath that you were undertaking the act under compulsory process in proceedings instituted in good faith by an aggrieved party, or under compulsory examination in bankruptcy, insolvency or liquidation proceedings.

Defences to the charge include:

  1. Duress, and
  2. Claim of right, which means you genuinely believed you were legally entitled to the property

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