Contents
Losing a loved one is often an emotionally overwhelming experience. Amidst the grief, managing legal matters can add another layer of complexity. Those closest to the deceased usually manage the administrative burden created by death. A crucial document in such circumstances is the Last Will and Testament.
A Will outlines the deceased person’s wishes regarding the distribution of their assets. It may also express their intentions regarding the care of children and pets, along with other critical instructions. Unfortunately, the location of this critical document is often not obvious. Locating the Will is frequently a considerable source of frustration for those administering the estate.
What Makes a Will Valid?
In Australia, a valid Will must usually be in writing and signed by the testator (the person making the Will). At least two competent witnesses must also sign the document. Each state and territory sets out its own legal requirements for a formal Will.
When a document fails to satisfy these requirements, it is known as an “Informal Will”. For example, a Will fails to meet legislative requirements if it lacks proper signatures or witnesses. This remains true even if the document is otherwise correct. In some circumstances, the Supreme Court may admit an Informal Will to probate despite these strict legal standards.
How Do You Locate a Will?
Start the search at the deceased’s home. Look for a physical copy in secure places like safes and filing cabinets. Check anywhere the deceased tended to keep important papers. Banks or storage facilities may also hold the Will in safe custody. You can ask these institutions if the deceased held a safe deposit box or storage unit.
Contact the deceased’s lawyer, as they may have drafted the Will. Lawyers often retain the original for safekeeping. Alternatively, they might have information about the document’s location. You can also check with the relevant state or territory’s Supreme Court registry. These registries maintain records of Wills, though most people do not register them.
Finally, conduct a Probate Search at the relevant Supreme Court. This search reveals any lodged or granted probate of the deceased’s Will. This helps if another family member has already located the Will and begun estate administration.
Search Checklist
| Location | Action Items |
|---|---|
| Home Search | Check safes, filing cabinets, and office drawers. |
| Banks | Inquire about safe deposit boxes or safe custody. |
| Law Firms | Contact the solicitor who drafted the original document. |
| Court Registries | Check for registered Wills or existing Probate applications. |
Legal Assistance
If you cannot locate a Will using these strategies, seek guidance from a qualified legal professional. Lawyers experienced in estate planning and probate matters offer tailored advice. They clarify legal obligations and assist with administering the estate without a valid, original Will. Proper documentation and legal guidance help honour the deceased’s wishes and minimise potential conflicts.
Do You Need the Original Document?
Lawyers often make copies when drafting a Will. Usually, the testator takes a copy for their records while the original stays in a safe location. Families often find the copy first, but the original remains the primary legal document. The probate process typically requires this original document to validate its authenticity.
Sometimes the original Will cannot be located. In these cases, specific procedures may allow the court to accept a copy. You must generally prove the copy is authentic and show that the original was not destroyed with the intent to revoke it. You may also need witness statements to demonstrate the copy reflects the true intentions of the deceased.
A copy can complicate the probate process. It potentially leads to delays or disputes among beneficiaries. Therefore, it is strongly advisable to keep original Wills in a secure place. This might include a trusted legal advisor, the executor, or a safety deposit box.
Conclusion
Locating an original Will demands patience and diligence. Understanding the available avenues and systematically exploring each option increases the likelihood of success. These efforts are invaluable in honouring the wishes of the departed and navigating the legalities of estate distribution.