A family member or close friend dying unexpectedly is difficult enough to deal with. What happens if you can’t find a Will? Attwood Marshall Lawyer Larisa Kapur, who practices exclusively in Wills & Estates, gives some tips on this difficult area of law.
We receive many enquiries from family members and friends unable to find the last Will of a relative or friend who has passed away. They are often hoping for a quick and easy solution to help them locate the last Will. Many people believe there is a central ‘Wills register’ and that solicitors can easily find them. Unfortunately this is not the case and finding a lost Will can become a timely and costly exercise for family and loved ones of the deceased person.
It is much easier for friends and family if a Will can be found. Most banks and insurance companies require a certified copy of the Will and the death certificate before they will release any funds. In many circumstances (and depending on the amount or value of the assets involved), they will require a Grant of Probate of a Will or Letters of Administration.
Is there a centralised Will registry?
No – there is not a Government operated Will registry in existence. There are a few internet based, privately run, Will registries that charge ongoing fees for storage of an electronic copy of your Will and an address of where the original Will is kept. This is not something that is utilised often due to the ongoing membership fees and the requirements to keep contact details updated.
Where to start looking for the Will?
In order to progress with the deceased Estate administration it is vital to conduct rigorous searches in an attempt to locate the last Will of the deceased. The Court will require evidence of the searches taken to locate the last Will of the deceased in any application for a Grant by personal representatives of the estate.
If you are unable to locate the Will at the deceased’s last known residence and by searching personal possessions and paperwork then you should try the following steps:
- Contact the person’s bank to see if they held a safety deposit box or had documents held in safe custody or securities;
- Contact local solicitors where the deceased person resided throughout their life and ask if they hold a copy of the Will for the deceased (look for any paperwork or correspondence from solicitors);
- Contact QLD Public Trust Office or NSW Trustee and Guardian (or equivalent in your State) – they have an online Deceased Will Enquiry portal that allows you to search for Wills they may have in their custody;
- Submit a request to the Supreme Court of NSW to search the Probate Office as they maintain a Will registry, where any person can voluntarily deposit their Will for safe keeping – fees apply;
- Contact the Law Society of NSW and request a search of their safe custody. Also solicitors can place an advertisement in the “lost Wills section” of the Law Society of NSW Journal for other solicitors state wide to see (the equivalent in QLD is through the QLD Law Society Proctor Journal);
- Check the person’s computer and smart phone – there may be an electronic copy of a will or evidence of their testamentary intentions.
There is no quick and simple way to locate a lost Will. The above steps are a starting point and are to be considered as part of a process of elimination.
Was there a valid Will that may have been lost?
Another important thing to do is establish if the deceased actually did make a Will but it is missing. A valid Will usually appoints an Executor and gives them immediate rights in relation to the administration of the deceased Estate and the assets owned by the deceased as at the date of death. No Will means the next of kin will need to apply to the Court to be given these rights in lieu of the Will (Letters of Administration). This is an added cost to the Estate.
If a Will cannot be found but there is evidence to confirm that it was last seen and in the possession of the deceased then there is a legal presumption that the Will has been intentionally destroyed by the Will maker in order to revoke it. To rebut this presumption the court will consider facts to prove that the Will existed with the intention to remain and that it was duly executed.
Things to consider as to whether the Will was intentionally destroyed or not are:-
- The context of the Will and the Will maker’s attitude towards the beneficiaries. Has the relationship changed between the deceased and any family members or close friends that were intended to be beneficiaries in the Will?
- Did the deceased talk and/or mention their Will to friends, family or neighbours?
- Is there any evidence that the Will was destroyed?
- Was the deceased able to destroy the Will (consider physical and mental limitations)?
What if the Will is nowhere to be found but there is evidence of a Will?
If there is concrete evidence that a valid and duly executed Will existed prior to the death of the deceased and it was not revoked, then it is very important to obtain proper legal advice to explore your options.
An interesting case from 1993 demonstrates the Courts power to reconstruct a Will should there be evidence in support of the claim. A famous Sydney artist, Brett Whitely, hand wrote his Will, had it witnessed by two independent witnesses and hid it at his house. At that time, Mr Whitely shared the existence of the Will and its whereabouts with a trusted friend. Subsequently, Mr Whitely openly discussed terms in his Will with his daughter and some of his friends on numerous and separate occasions. After Mr Whitely’s death the Will was nowhere to be found. An application was brought to the Court to reconstruct the Will based on sworn evidence about the terms of the Will and its existence. The Court found there was sufficient evidence to reconstruct Mr Whitely’s Will!
Hopefully you have picked up some useful tips from this article to assist in finding a Will. Sometimes speaking to lawyers who are experienced in this area of law can help you in your search.
Please note Attwood Marshall offer free storage of important legal documents in our secure safe custody strong room as part of our service to our clients. Our clients’ families know exactly where to look for important legal documents when you get sick, lose capacity or die.
You are welcome to contact our office with any enquiries concerning lost Wills & Estates. Please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email [email protected] or free call 1800 621 071 to book your free 30 minute appointment with one of our dedicated Estate lawyers.