Brisbane’s Legal Lowdown: What if a Will is lost, destroyed, or there are multiple versions?

Sofie: Alright, it’s time for this week’s Brisbane legal lowdown with Attwood Marshall Lawyers. Now, today we’re going to be discussing what happens if a will can’t be found after someone passes away, or if there are multiple versions of that will floating around.

And these situations are more common than you think from wills going missing, to getting destroyed, to families arguing over which version should be considered the final wishes of the deceased. Now, disputes like this can make an already difficult time even more stressful, and they often end up in court. Let’s unpack what the law says as we welcome Attwood Marshall Lawyers’ Estate Litigation Senior Associate Duncan MacDougall, afternoon to you, Duncan.

Duncan: Afternoon. Thanks for having me again.

Sofie: Now, what happens when a will goes missing? This happened in my family, several versions were found for the one aunt that had passed. What happens when that goes missing or multiple versions are found once that person passes away?

Duncan: It’s becoming an increasingly main issue when it comes to wills because a lot of times people will either they prepare it themselves and then try to keep it in a safe place at home and then later goes missing for whatever reason. Now, when that will does go missing and it can be traced back to the hands of the deceased, the deceased was the last person to have that will, it’s presumed that they had destroyed it.

So, basically it becomes invalid and all of a sudden you leave it up to intestacy laws in that case.

Sofie: So, is a copy of a will enough to apply for probate, or do you need the original? Like if the last one that might have been the one that they want, does it always revert back to the original one that was legally binding?

Duncan: Not necessarily. It’s going to turn on the facts of the circumstances and what happens. But to give you an example, I have one that comes to mind where I had an executor down in New Zealand. The deceased often travelled, he was a bit of a jet setter. He lived in America for a period of time. The spouse was over in China. It was a very complicated situation. But in this case, the will could be traced back to him and we had to overcome that presumption that it was destroyed by him and the way we did that by explaining the circumstances, getting affidavits by family and friends, work colleagues knew that he didn’t deal with his paperwork very well.

Sofie: He wasn’t good with life admin, is what I refer to myself as.

Duncan: Exactly. Yes. So, in that case, it was simply the court determined that it was simply missing, so that they allowed that to be admitted to probate in the case that it was simply lost.

Sofie: Okay, because I must say I must clarify that it happened to an aunt. She was a step aunt, so thankfully my blood and just by marriage I didn’t have to step into that world. But the case was protracted. It went on for years with everyone fighting, because there were so many different versions.

Duncan: And that could very well be the case too, where you got multiple versions. When is the last will? Generally, it’s going to come down to the date that’s on that document, but it depends on whether or not the deceased intended for it to be their last document.

What’s the nature of the instructions they’re providing?

Do they intend to devolve their assets in a particular way? It’s all going to turn on to the facts of the circumstances.

Sofie: What happens if someone suspects that the will was intentionally destroyed or tampered with, or altered in some kind of way?

Duncan: And a lot of times we’ve got people inquiring saying, oh, it’s the new spouse, she’s grabbed the will and she’s destroyed it. You know, which just turns your mind to making it all more important to see a solicitor when you’re preparing your will. Because at that point in time, the solicitor’s going to take record of this, they’re going to be the ones preparing. So, they’re going to have a file.

Generally, in those situations where you’ve got a will and they’re saying, well, it’s been lost, it’s destroyed. It doesn’t mean it’s the end of the day. You’ve got a record that, that document has been produced, which might mean an affidavit by the solicitor who prepared the will, the witnesses under that document, if you got a copy of that document, might come into play. So, all important to make sure you’ve got details of your witnesses to that will and their personal details as well.

Sofie: Okay. What if hypothetically I didn’t have a will and then I started just sort of scribbling down on a serviette or putting in my notes in my phone, things that I would like to happen, and then I pass away before I make it official, go to a solicitor or whatever. Is that legally binding at all?

Duncan: Not necessarily. It’s going to again, going to turn on the circumstances, but what that is considered is an informal will.

They’re all going to come down to, do you actually have somebody appointed as an executor to administer your estate?  Are you dealing with your estate as a whole? Do you actually understand the nature of your assets and liabilities that you are distributing under your will? Was it properly executed? Was it just signed by you or were there ever other people to witness that sort of thing. It’s all going to come down to the circumstances.

Sofie: I thought you were going to say it all comes down to whether you’re worth anything which is not. I think there are far more liabilities than there are assets in my case. So how do the courts then determine which version of the will is valid if there are these sort of conflicting copies?

Duncan: It’s going to come down to how those documents were prepared, who was witness to those documents, again the solicitors records will come as an important aspect in terms of these sorts of applications.

All these different versions again whether it be deemed as an informal document, because a lot of time we’ve got elderly clients for example, they take their document, they start scribbling notes on things, start crossing things off and on, which creates all sorts of issues. So, when in doubt, don’t touch an original document. Whatever you do, if you’re intending to amend your instructions by any means or amend the disposition of your assets, go see a solicitor, get a new document prepared.

Sofie: What if I do that and I use white out? Or what if I do that and then I initialise it? D

Duncan: And who’s gonna witness that? Was it just you, or did anybody else see that happen? You know, even it goes so far along the lines of even when we’re making applications for probate, does it look like a staple was removed from the document, in which case we would have to prepare an affidavit, say somebody was, not us, but say somebody had mistakenly taken out a staple, scanned in the document, stapled it back, but there’s obviously holes in the document. And that’s what the court deals with in these sorts of applications.

Sofie: Wowza! You can join in the conversation any time. Perhaps you’ve got a question that you would like to ask Duncan. He is Attwood Marshall Lawyers’ Estate litigation Senior Associate.

The open line number is 133 882 or you can text us through if you have a question you’d like answered. It’s a free service. We’ll open it up to you 0499 880 882.

John in Holland Park has called through on that open line number. You’ve got a question for Duncan? Hello, John. All right. He doesn’t need to be there.

All right, I think he was asking a question about what happens if the lawyer or the solicitor that you had moves on or retires or you’ve answered the question about if it’s destroyed. But you know what happens if it’s contested and that lawyer has moved on or retired?

Duncan: Yeah. Or even if that business goes belly up. A good question.

Generally, when somebody else takes over a firm, all of those safe custody documents, well, again, it’s important that they are kept in these safe custody packets, that are retained by your solicitor, once you’ve prepared it, the originals at least, you retain a copy, but say for instance, they move on or otherwise they’ll generally get passed to the solicitors who have taken over that firm.

If not, safe custody documents will go into the Queensland Law Society and record of that will be held by them. 

Sofie: Okay, so there’s annuals of records and documents and things that exist if that business cease to exist or if that lawyer ceases.

Duncan: Exactly. Correct. But all the more important to have that conversation with who you’ve got appointed as the executor under your will to let them know, hey, listen, you’ve got an important job under this under this document and here’s where the original is so that something happens to me, here’s where you can go to.

Sofie: Every time you come on this program, Duncan, I think I should, and like that other suggestion – I am bad at life administration, I am, and I think I’m too young to write a will but that’s not true. That’s me being in denial. You should get your affairs in order.

Duncan: Yeah. And a lot of people just don’t understand the assets they might have, you know, like, especially when it comes to superannuation. In the event that you pass, you don’t have those binding nominations, people might be sitting on a bit of a gold mine when it comes to their superannuation which may form part of their estate or not depending on whether or not you’ve got beneficiaries nominated.

Sofie: Question then. If I don’t have a will and there’s no one that it goes to, what happens to that super? What happens to anything that I have as an asset? Does the state own it? What happens there?

Duncan: Yeah. So speaking of superannuation, that’s going to come down to the trustee of the fund deciding who’s to receive that, but it’s all going to come down on who makes a claim for that, whether it be a surviving spouse, children or the estate itself to call in those assets to the pool of assets that are managed by your estate. So, it’s not lost.

But again, your estate in that instance would be administered on intestacy. A legislative list of rules on who’s going to take control of your estate for one, and who’s going benefit from your estate in another.

Sofie: Oh my gosh, so much think about, okay, we’ve got a text here. What is the ideal amount of executors to your will?

Duncan: Yeah. So again, a big issue that I see creep up more often than not now where you’ve got more than one executor and all of a sudden they butt heads, whether that be siblings or otherwise.

We’ve got clients who say, well, I just want all my kids included. I don’t want to leave anybody out. When in reality, too many cooks in the kitchen. Best to have one person or two people who can actually get the job done. Just in terms of that administrative role, you’re not excluding them by any means if you’re providing equally between all of your children.

To give you that example. It’s simply just somebody in there to get the job done and who can properly administer the estate.

Sofie: Alright, this text now through from Jimmy, are those will kits you get from the post office any good? How secure are they?

Duncan: Short answer is no.

Sofie: Really? I thought they were meant to make it convenient?

Duncan: Yeah. Well, for small estates potentially. But again, it’s people who have taken them and prepared it themselves. You know, it’s basically a framework there.

But there’s so much that goes into estate planning nowadays that we really avoid people going down that path and come see a solicitor. You may pay a little extra to get it done, but you get it done properly because the costs of fixing it later with those will kits is far going to outweigh any benefit that you think that you might be saving now.

Sofie: It’s as good as me jotting down notes on a serviette that I suggested, I won’t be doing Duncan! Alright, what should people do now to avoid confusion about their final wishes later on and to help keep their will safe?

Duncan: So just again see a solicitor get your documents done, keep them somewhere safe. Keep copies of everything. Even if you’ve had wills done in the past, you move solicitors for instance. It’s a good idea just to keep a bit of a record of them, keep them all in the same place. Not necessarily well I’ve got a new will prepared, I’m going to destroy all the other ones because if something goes wrong that will goes missing, again, the evidence there it can show intent over time, what your intentions were in terms of the distribution of your estate. So tell people, tell your family, where are my original documents, where can you go to. The more people who know what’s there and who to go to, the easier it’s going to be for your family down the track.

Sofie: Some great advice as always, and thank you to you, Duncan, for coming in every week, Attwood Marshall Lawyers there, Duncan MacDougall. We’ll see you next week.

Duncan: Thanks.