Do you know where your spouse or parent made a Will? If so, do you know where they keep it? Do they keep it in a home safe, or in another location in the house? Perhaps they stashed it somewhere else for “safekeeping.” Have you asked him or her about it? It may not seem like a big deal now, but being able to find it after your loved one dies can prevent a lot of headaches.
There is no public registry for Wills
Contrary to popular belief, the government does not provide or coordinate centralised registries for Wills in Australia. However, that is not to say there are none at all.
Some private companies do offer registries online. These services generally include storage of an electronic copy of the Will and records pertaining to the location of the original Will. To date, costs and administrative requirements have kept these registries from gaining widespread popularity. This means it is unlikely, but not necessarily impossible your loved one chose this option.
For example, the New South Wales Registry of Birth Deaths and Marriages (BDM) did operate a Wills Register from 2002 until 28 March 2014. Although it no longer provides this service, the BDM still keeps historical information.
In Queensland, the Supreme Court of Queensland does not hold Wills. The only time the Queensland Court retains the original will if a person has died and their executor has applied for a grant of probate.
In the event that a Will is filed in court, it becomes a public document.
Conducting the search
So what should you do if a loved one passes away and you cannot find his or her Will? If you have scoured all of the most logical places with no success, try the following:
- Ask someone where your loved one banked to see if your loved one had a safety deposit box where he or she may have kept his or her Will;
- Contact lawyers anywhere the deceased person resided and ask if they still have a copy of his or her Will;
- Check your loved one’s computer and other devices where they may have kept an electronic copy of a Will, proof that they made one or intended to make one.
If you still cannot find what you’ve been looking for, depending upon which state of Australia you’re in, contact relevant public trustee offices as they may have created the Will and have it stored.
Barring all of that, lawyers can list relevant information in the “lost section” of the professional journals for their states. Although this may seem old fashioned, it may be an effective way to widen the search. This may even be fairly efficient if the journal is also available online.
Still no luck, now what?
Suppose you have followed all of the recommendations we have just detailed, all to no avail. Believe it or not, all is not necessarily lost.
If you cannot find a hard copy of the original Will, you must be able to provide some sort of proof that the deceased: a) intended to create a Will; or b) had specific plans for the disposition of his or her estate. With this, you may be able to get Court Orders to have those documents considered in the same manner as the original Will. In this case, the law attempts to interpret what the deceased wanted instead of applying the rules of intestacy.
The latter may also be used to refute a legal presumption regarding the Will maker’s deliberate destruction and revocation of the Will. This particular presumption is made if: a) a will cannot be located, and b) there is evidence to show the person who subsequently passed away had it the last time anyone saw it.
The court will also consider:
- The Will in its entire context
- The way the maker viewed the beneficiaries
- Any evidence (or lack thereof) that it was destroyed
- Whether the deceased was actually capable of destroying the Will
- Evidence that your loved one discussed his or her Will with anyone else before he or she passed away
- Evidence that your loved one discussed his or her plans for his or her estate with anyone else before he or she passed away
As you can see, the inability to locate a Will after someone has passed away can create all sorts of legal complications.
At Law By Dan, we can help you with all facets of estate planning, including Wills, Enduring Powers of Attorney and other important documents. We can also help you in the event that you wish to dispute a Will, have been left out of a Will, or believe you have not been sufficiently provided for in the Will.