As discussed in last week’s article on the risks of informal wills, having a formal document outlining your testamentary intentions is a very serious matter. Without a formal will, you can risk having your estate distributed in a way that does not align with your intentions. But what happens if you have a formal will…and you just can’t find it? In this article, we will delve into another issue with wills: what to do if you’ve lost the original.
An original will is the will that a person executes, witnessed in many instances by their legal practitioner. This will should -and is often- kept in secure place; such as a safe custody facility, so it may be easily located upon the testator’s death. When an original will is lost or misplaced, administering an estate becomes increasingly costly, time-consuming and complex. Other than aimlessly searching for the original will, there are several options to locate it methodically.
The first method involves public trustees. These are state-based government departments that handle issues relating to testamentary trusts, wills, estates and guardianship. It is a good idea to begin the search for an original will by contacting the relevant public trustee of the state where the testator resided. Some state’s public trustees have storage facilities and databases, with facilities to store original wills. People may also consult public trustees when drafting a will and so, contacting the public trustee can assist in locating if there is a will at all.
Law societies are the next channel of information. Your solicitor should contact the law society of the relevant state for a wills’ register. If there is no register for that state, the lawyer can place an advertisement seeking the location of the will from other practitioners.
The Supreme Court of New South Wales is another avenue to explore. Under the Succession Act 2006 (NSW), the Registrar of the Probate Court of NSW is authorised to hold original wills deposited there for safekeeping. If you lose an original will, you can retrieve it from the Registry by following a procedure, given that you are entitled to do so.
Finally, bank deposit boxes are another location option. Traditionally, deposit box storage services allowed banks to hold original wills at the testator’s branch.
Notably, if the testator is still alive, has lost their original will and cannot find it, it is always best practice to make a new one. This is vital as a photocopy or copy of the original will is typically not admitted to probate; putting the quality of your family’s future and your assets at risk. Your new will overrides any previous testamentary intentions made in any other wills and shall remove any doubts come administration of the estate as to which will is the most current and relevant.
If you have any queries in relation to wills and estates, or would like assistance drafting your will, please feel free to contact our team of experienced lawyers by clicking here to submit an online enquiry form, calling us on 1300 QUINNS or alternatively, +61 2 9223 9166 to arrange a teleconference or appointment. You can also request our free Will Kit.