If the original will can't be found, you could face a significantly more complex probate process.

When a person dies, the distribution of their estate and the person entitled to step into the shoes of the deceased in managing their affairs, is governed by the deceased’s Last Will and Testament.

Accordingly, after a loved one has died, it is crucial that you are able to locate the deceased person’s Will in order to properly handle their affairs. In some cases a Will contains instructions that are important to take into account soon after the person’s death, such as funeral wishes or instructions for the care of children or pets.

Unfortunately, the location of this critical document is often not obvious, and locating the Will is frequently a considerable source of frustration for those intending to administer the estate.

What Makes a Will Valid?

The formal requirements for a Will to be considered valid in New South Wales 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.

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 (including if it has only been signed by one person), 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 still be admitted to probate by the Supreme Court even if it does not meet the strict legal requirements, however it involves an added layer of complexity, time and cost to the probate process as compared to obtaining probate of a validly signed Will.

How Do You Locate a Will?

If you know the identity of deceased’s lawyer who drafted the deceased’s Will, contacting that lawyer is often a good place to start. Lawyers often retain the original of the Will for safekeeping, or they might have information about the location of the original document.

Another important initial step is to search 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 enquire if the deceased had a safe deposit box or storage unit.

Although it is the physical version of the will which will usually be required, if you have access to the deceased’s computer records, you may find an electronic version. This may contain hints as to where the original physical copy is – for example, it may have the contact details for the lawyer who drafted it.

If there is a chance that the deceased made their well with NSW Trustee and Guardian (“TAG”), you can make an enquiry of TAG through its website as to any Wills they hold in the name of the deceased.

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 should seek guidance from a qualified legal professional or lawyer experienced in estate planning and probate matters. They will be able to discuss any other avenues of enquiry that may be available, and advise you as to your options if the original Will cannot be found.

In particular, it may be that a probate of a copy, rather than the original, of the Will can be sought, as discussed in further detail below. Or it may be that the estate needs to be administered on the basis that there is no will, also known as intestacy.

These can be complex areas, and specialist advice is vital.

Do You Need the Original Document?

When a Will is made in Australia, especially when it is drafted by a lawyer, one or more additional copies are often made . 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.

If an original will cannot be found, and the last person to have it in their possession was the deceased, there is a presumption that the reason the will cannot be found is that the deceased destroyed it with the intention of revoking it. Again, this highlights the importance of ensuring that there is clear communication as to where a person has kept their will.

There are some circumstances might arise where the Supreme Court is prepared to grant of probate to a copy of the Will, rather than the original. However, again this involves an extra layer of complexity, such as 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 deceased and navigating the legalities of estate distribution.

Somerville Legal’s wills and estates team, headed by Law Society accredited specialist Stephen Lynch, have significant experience in estates where there is some uncertainty as to the location of the Will. If you or someone you know wants more information or needs help or advice, please contact Stephen Lynch, Emily PriestleyEmily Priestley or Mumtash Assudani on (02) 9923 2321 or email enquiries@somervillelegal.com.au.