Attwood Marshall Lawyers Estate Litigation Senior Associate, April Kennedy, joins Robyn Hyland on Radio 4CRB to discuss the steps to take to find a missing Will, who is eligible to request a copy of a Will, and what people need to understand about the options available if a Will is lost forever or destroyed.
Introduction – Who can help you?
Law firms are one of the first points of contact for many people after they have lost a loved one. A lawyer can help the family find their loved one’s Will, help them to understand their wishes and advise them on what to do with the estate. Locating a missing Will can be a complex task! Unfortunately, there is no simple answer as to where someone’s Will may be located, if in fact they even had one. However, there are steps you can take to investigate possible locations of the Will.
Another issue that tends to arise after someone passes away is when people request a copy of someone’s Will from the family or the Executor, but they may not be entitled to receive it. It is important to understand that you must fall into one of the categories of ‘entitled persons’ to be able to inspect or receive a copy of the Will. In this blog, we explain the steps to take if you are looking for a missing Will, what options are available if you know there is a Will, but someone is refusing to provide you with a copy, and what can happen if a Will cannot be found however there was evidence of a Will in existence that has since been lost.
Who is entitled to request a copy of a Will?
A Will is not a public document so it cannot be made available to everyone after someone has passed away. It is important to identify who is entitled to see or inspect the Will according to the law.
Each state and territory in Australia have their own laws that outline who is entitled to inspect the Will or seek a copy of the Will.
The categories of people who are entitled to a copy of the Will include:
- a person mentioned in the Will, whether as beneficiary or not and whether named or not; or
- a person mentioned in any earlier Will of the testator as a beneficiary and whether named or not; or
- a spouse, parent or issue of the testator; or
- a person who would be entitled to a share of the estate of the testator if the testator had died intestate; or
- a parent or guardian of a minor mentioned in the Will or who would be entitled to a share of the estate if the testator had died intestate; or
- a creditor or other person who has a claim at law or in equity against the estate; or
- a person who may apply for an order under section 41 of t Succession Act 1981 (QLD).
New South Wales
- any person named or referred to in the Will, whether as a beneficiary or not,
- any person named or referred to in an earlier Will as a beneficiary of the deceased person,
- the surviving spouse, de facto partner or issue of the deceased person,
- a parent or guardian of the deceased person,
- any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate,
- any parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate of the testator if the testator had died intestate,
- any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
- any person committed with the management of the deceased person‘s estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person,
- any attorney under an enduring power of attorney made by the deceased person,
- any person belonging to a class of persons prescribed by the regulations.
- any person named or referred to in the will, whether as beneficiary or not;
- any person named or referred to in any earlier will as a beneficiary;
- any spouse of the testator at the date of the testator’s death;
- any domestic partner of the testator;
- any parent, guardian or children of the deceased person;
- any person who would be entitled to a share of the estate if the deceased person had died intestate;
- any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate;
- any creditor or other person who has a claim at law or in equity against the estate of the deceased person and who produces evidence of that claim.
Where to start your search for a Will after someone passes away
Unfortunately, many people do not talk openly about their Will when they are alive. There are many reasons for this, including that some people do not feel comfortable talking about death, or because they wish to keep the contents of their Will private until after they are gone. Whatever the reason may be, when loved ones do not discuss the existence of their Will and where it may be located while they are still alive, this can make it difficult to know if a person had a Will, and where to find it after they die.
There is no central Will registry that you can simply check to see if someone has created and stored a Will so we recommend following the steps below to begin your search:
Make a thorough search of paperwork at the deceased’s home
The first thing to do is to check any paperwork that might be amongst the possessions of the deceased. There might be a letter from a lawyer or a photocopy of a Will with the lawyer’s details on it. Sometimes these important documents might be in a safe or a special place or a filing cabinet. Sometimes, they might be in a ‘socks & undies’ drawer or in a box under the bed! Don’t forget to check digital records, including their computer and smartphone as they may have stored an electronic copy of their Will, or alternatively may have kept electronic notes about their testamentary intentions (this may be evidence of an informal Will – which is a whole other issue in itself but may be useful if you are unable to locate a Will). Make sure you have looked through all of the papers and records of the deceased to check – you will need to do this anyway in order to work out what the assets are in the estate. If there is no copy of the Will, don’t panic yet. Assuming there is no Will or a copy amongst the papers of the deceased, there are other avenues you can try.
Contact Law Firms
In many cases, the Will is held by a law firm that acted for the deceased and drafted the Will (if it was done professionally), which makes this the best place to start. If you are unaware of which law firm the deceased used throughout their life, then try phoning local law firms that are located close to where the deceased lived.
You can also approach a solicitor to place an advertisement within the Law Society Journal for other solicitors state-wide to see. For instance, in Queensland, this publication is called The Queensland Law Reporter. Most law firms check Law Journals weekly and will get in touch with you if they have the Will.
The Public Trust Office
In instances where people have taken up The Public Trustees services to have their Will drafted, then the original Will would be held by The Public Trust Office in their state or territory. You can phone them to check whether they hold the Will, although usually, they won’t divulge any details without a death certificate.
If these steps have been unsuccessful, you can also try contacting the deceased’s bank to see if they held a safety deposit box or had documents held in safe custody.
These are just a few places to start the search for a missing Will. As you can see, there is no quick and simple way to locate a Will and it can be a process of elimination.
What happens if you know someone has possession of the original Will and they refuse to provide a copy?
Firstly, it comes down to who is entitled to seek a copy of the Will. An Executor or law firm may withhold a copy of someone’s Will if this is requested by someone who is not entitled to see or inspect the Will.
However, we do see it frequently where the person holding the original Will refuses to provide a copy of the document to the person seeking a copy who has every right to receive this.
If you find yourself in this situation, you should seek legal advice from a lawyer or law firm that is experienced in estate law and estate litigation. Sometimes, once the other party hears from a lawyer, then you will find that they will cooperate and provide you with that information or a copy of the Will without the matter needing to proceed any further.
If a lawyer’s letter has failed to obtain a copy of the Will, then there are procedures in place to assist people who need to essentially compel the other party to surrender the Will or release the Will to them (or to the Court if they need to apply for a grant of Probate).
In Queensland, you can apply to the Court to issue a subpoena to compel the other party to release the Will. If they do not comply with the subpoena, then they will be held in contempt of Court. This means they have ignored or interfered with the rules of the Court. They will be faced with financial penalties (such as paying the other person’s legal fees) or in extreme circumstances, they may face criminal penalties (including imprisonment).
In New South Wales, the process is a little bit different, however, the outcome is the same. You can apply to the Court by filing a notice of motion seeking orders to compel the other party to produce the Will (either to you or directly or to the Court).
This process is costly and, in many cases, unnecessary. If you are the person holding the Will and you receive a request to provide a copy of the Will to a family member or the original Will to the Executor then it is best to get legal advice to ensure that you understand your obligations, who may be entitled to receive a copy of the Will and avoid being subpoenaed or having orders made against you.
What happens if a Will is nowhere to be found?
When someone dies without having a valid Will, they die intestate. If you believe you have an interest in an intestate estate or want to know who has the authority to deal with the estate, it is important to seek advice from a lawyer who practises in estate law. You will need to get advice on applying for Letters of Administration (LOA), which is the equivalent of getting a grant of probate. There is a statutory order of priority in who can apply for LOA, so you need to make sure you are entitled to do this.
I have a copy of a Will but cannot locate the original document – what can I do?
If there is evidence that a valid Will did exist at some stage prior to the person dying, and that there is no evidence that the Will was ever revoked (i.e. that a later Will was not done), it is extremely important to obtain proper legal advice to explore your options.
The below options may be available, including:
There are cases that have demonstrated the Courts power to reconstruct a Will should there be evidence in support of the claim.
This happened in a case in 1993 where a famous Sydney artist, Brett Whitely, handwrote his Will, had it witnessed by two independent witnesses and hid it at his home under a drawer in his kitchen.
At that time, Mr Whitely shared the existence of the Will and where it was hidden with a trusted friend. Subsequently, Mr Whitely openly discussed the terms of his Will with his daughter and his friends on several occasions. After Mr Whitely’s death, the Will could not 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 the Will.
Probate of a copy of a Will
There are also cases where the Court has granted Probate (i.e. confirmed that the Will was the last valid Will of the deceased) utilising a copy of the Will, instead of the original document.
If extensive searches have been conducted to find the original document, and there is no evidence that it was destroyed (with the intention of revoking it) and the original cannot be produced then the Court has the power to use a copy of the Will instead.
There are various reasons why the original Will may be unable to be produced, including but not limited to:
- If the original Will was lost in a flood, fire, or another natural event. This is a sad reality for many people as we have seen most recently during the latest flood events that have unfolded across Queensland and the Northern Rivers.
- If the original Will was accidentally thrown out. This can easily happen when moving house.
- If the original Will was accidentally lost. It may have been lost by the law firm that held the original document, or more often when the deceased has asked their lawyer to release the original Will to them (so they can store it safely at home or in their office or with their family) and then it goes missing after that point.
The takeaway is that – if there is evidence that a Will exists – but the original Will cannot be found then all is not lost. If you find yourself in this situation, it is important to get trusted advice from an experienced estate lawyer who can help you navigate the complex legal processes and move forward so that you can ultimately fulfil the wishes of the deceased and the estate can be administered.
Attwood Marshall Lawyers – leading experts in estate planning and estate litigation
With one of the largest and most experienced Wills and Estates departments in Australia, we understand the difficulties many people face when trying to locate the Will of a loved one or when people are involved in disputes with Executors or someone holding the Will who refuse to cooperate.
We strive to help people uphold the wishes of the deceased and ensure matters can be resolved quickly and effectively to reduce your stress during a time you are already faced with grief and other challenges.
If you need advice about locating a Will or need assistance to obtain a copy of a Will, please contact our team any time by reaching out to our Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email email@example.com or free call 1800 621 071.
Choosing the right executor for your Will is a crucial decision and one that requires careful thought and consideration