What If You Can’t Find The Will?

It is common to have difficulties locating an original will. This is particularly the case when a person passes away unexpectedly. A family member may have a vague memory of the deceased talking about making their will, but not be aware of its whereabouts. It is important to attempt to locate the original will, otherwise, the law will assume that the deceased died intestate. This article suggests some places to search for a deceased’s will and explains what to do when you can’t find a will in Australia.

Who To Talk to When You Can’t Find A Will

The first place that the family members or executor of a deceased person should turn to when they can’t locate a will is the deceased’s solicitor. When a person prepares a will with the help of a lawyer, the testator is usually encouraged to leave the original document at the solicitor’s office. The testator will take home a copy of the will together with instructions to contact the solicitor to obtain the original. As this is an established practice for solicitor-made wills, a family that can’t find a will should always approach the deceased’s solicitor. If the family does not know who the deceased’s solicitor is, they can contact local solicitors in the area and ask if they hold the person’s will.

Some testators choose to store their original will with the person they have nominated to act as executor of their estate. A testator might reason that the will should be left in the hands of the person who needs easy access to the document. Therefore, you should contact anyone who you think the deceased trusted and might have chosen to act as their personal representative.

Where To Search When You Can’t Find A Will

When a person chooses to keep custody of their original will, their solicitor will encourage them to keep it in a safe place and inform their executor and family members of where it is stored. As the testator will likely have been advised to secure their will from fire and flood, the family should search their house for a waterproof and fireproof metal box, or wall or floor safe. Wills are often kept in a locked filing cabinet or a private home office.

When the family still can’t find the will, they should investigate whether the deceased had a safe deposit box. These secure boxes are often located in banks, so it is best to check the deceased’s paperwork and financial statements to see if there are payments for this service. Typically, the bank will allow certain authorised parties access to a deceased person’s safe deposit box. For instance, the Commonwealth Bank allows the next of kin or the personal representative of a deceased estate to collect a will from the bank’s safe custody facility.

Australia does not have a central wills register and there is no legal requirement to register a will. However, some states and territories do offer a registry service where testators can lodge their will. For instance, the New South Wales Trustee and Guardian has a Will Safe Repository that can be used for a fee. The family of a deceased in New South Wales should make an online enquiry to the Repository if they can’t find the will.

The next step is to search in more unconventional places such as the deceased’s mobile phone or computer to see if they have stored an electronic copy of the will or an “informal will”. The Supreme Court can validate an informal will even if it does not conform to regulations if it reflects the deceased’s genuine testamentary intention.

When You Have A Copy But Can’t Find The Original

When the family knows that the deceased made a will, and has a copy, but cannot find the original, the presumption is that the testator destroyed the original document with the intention of revoking the will. However, an executor may seek to rebut this presumption by applying for probate with a copy of the will. In this situation, the executor bears the onus of proving that the absence of the original will is not evidence that the testator revoked the will. The Supreme Court will examine the circumstances, including who prepared the original will and whether the will was properly executed, and investigate what happened to the document after it was signed.

The process is different if a lawyer was holding the original will in safe custody and now can’t find it. If a solicitor loses the original will, the court does not start from a presumption that it was revoked. Instead, the solicitor who lost the will must tell the court that they can’t find the will and how they think it was lost.

Hopefully, this article has provided a starting point if you can’t find a will. If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers. 

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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