Losing a loved one is often an emotionally overwhelming experience, and amidst the grief, managing legal matters can add another layer of complexity. Yet it most often falls to those closest to the deceased to manage the administrative burden created by death. A crucial document in such circumstances is the Last Will and Testament of the deceased. A Will outlines the deceased person’s wishes regarding the distribution of their assets but may also express their intentions in relation to the care of children and pets, and other critical instructions. Unfortunately, the location of this critical document is often not obvious, and locating the Will is frequently a considerable source of frustration for those administering the estate.
What Makes a Will Valid?
The formal requirements for a Will to be considered valid in Australia usually include it being in writing, signed by the testator (the person making the Will), and witnessed by at least two competent witnesses who also sign the document. Each state and territory in Australia sets out the legal requirements for a formal Will in that jurisdiction.
When a document intended as a Will does not satisfy these requirements, it is known as an “Informal Will”. For example, if a Will has not been properly signed or witnessed, it will fail to meet the requirement of a Will as set out in the legislation, even if it is correct in every other aspect. In some circumstances, an Informal Will may be admitted to probate by the Supreme Court even if it does not meet the strict legal requirements.
How Do You Locate a Will?
The initial step to locating a Will is to start by searching the deceased’s home for a physical copy of the Will. You should look in secure places like safes and filing cabinets, or other places where the deceased tended to keep important papers. For instance, the Will might be held in safe custody with a bank or a storage facility. You can reach out to these institutions to inquire if the deceased had a safe deposit box or storage unit.
You can also contact the deceased’s lawyer who may have drafted the Will. Lawyers often retain the original of the Will for safekeeping, or they might have information about the location of the original document. You can also check with the relevant state or territory’s Supreme Court registry. They maintain records of Wills that have been registered, although it is important to know that most people do not register their Will.
Finally, you can conduct a Probate Search at the relevant Supreme Court to discover any lodged or granted probate of the deceased’s Will, which may help if another family member or friend already located the Will and began the administration of the deceased’s estate.
Legal Assistance
When a Will cannot be located using these initial strategies, you may need to seek guidance from a qualified legal professional or lawyer experienced in estate planning and probate matters. They can offer tailored advice, clarify legal obligations, and assist in addressing any concerns regarding administering the estate without a valid, original Will. Ultimately, proper documentation and legal guidance can significantly contribute to honouring the deceased’s wishes and minimising potential conflicts during the probate proceedings.
Do You Need the Original Document?
When a Will is made in Australia, especially when it is drafted by a lawyer, it is often copied. In such cases, the testator will usually take a copy for their records and the original is stored in a safe location. Understandably, it is often this copy that is found by the deceased’s family, but it is the original that is considered the primary document. This original document holds significant legal weight and is typically required for the probate process to validate its authenticity.
However, circumstances might arise where the original Will cannot be located after a person’s passing. In such cases, there are procedures in place that may accept a copy of the Will under specific conditions. These conditions often involve proving the authenticity of the copy through various means, such as presenting witness statements, providing evidence that the original was not destroyed with the intent to revoke it, or demonstrating that the copy reflects the true intentions of the deceased.
While a copy of the Will might be accepted under certain circumstances, it can complicate the probate process and potentially lead to delays or disputes among beneficiaries or interested parties. Therefore, it is strongly advisable to keep original Wills in a safe and easily accessible location, such as with a trusted legal advisor, the executor, or in a secure place like a safety deposit box.
Conclusion
The process of locating an original Will can demand patience, diligence, and often legal assistance. Understanding the avenues available and systematically exploring each option increases the likelihood of finding the document. While it may seem daunting, the efforts put into locating the original Will are invaluable in honouring the wishes of the departed and navigating the legalities of estate distribution.
This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3261 0400 or email [email protected].
Rod Holloway was born in Boondall and was educated in the area.
Karen Kerr is the Practice Manager and Senior Paralegal who has worked in a number of firms over the years and has now worked at Rod Holloway & Co in excess of 25 years.