Probate applications require production of the original will. But what if the original can’t be found? In certain circumstances a Court will recognise a lost will and admit a copy of it to probate.
Image: Coat of Arms, Broken Hill Courthouse, NSW, by B Stead.
Many provisions in state and territory legislation on succession and wills allow for a willmaker to express a contrary intention in their will to override the statutory rule. Where a provision of succession legislation contains these words, it means that the statutory rule can be displaced, that is not apply in the administration of their estate, if a willmaker has expressed a different intention on the matter in their will as to what they want to have happen.
A stepchild’s eligibility under the statutory rules for seeking provision from a step-parent’s deceased estate can be difficult.
In a Victorian case1 the executor of a deceased estate applied to the Supreme Court to have a claim for family provision dismissed.
The claim was brought by the adult daughter of the deceased’s former domestic partner, who had died some years before. She had been left out of his will, despite assurances and promises to the contrary. The deceased had left everything to his new domestic partner.
When no will is left by a deceased person they are said to have died intestate. Dying intestate means no will is left setting out what is to be done with the deceased’s property. Who is entitled to take their estate?
Leaving gifts of personal possessions seems easy to do – until someone else has to interpret what was meant in the words used in the will.
Many couples wish to leave their estates to each other when they die, and then to their children. They usually nominate the same people to act as their executors and trustees, typically each other, and one or more of their children may be appointed as substitutes. Putting these intentions into writing in their individual will …
Sometimes it is not until after a will-maker dies, when their executor is applying for a grant of probate, or seeking to administer the estate, that some kind of administrative mistake is discovered in the will. For example words used in the will, or some mis-description, operate to prevent the will-maker’s intentions from being put …
There is no requirement that an executor must accept the executorship role, even if it was agreed to do so. But relinquishing executorship should be done as soon as practical if you don’t wish to act and have not dealt with the estate. You can resign your appointment as executor by renouncing your right to probate of the deceased’s will, that is you renounce probate.
Who our ‘nieces and nephews’ are, if we have them, may seem so obvious as to not need mentioning, after all it is all in the family and identifying them should not be a problem. Leaving a gift to be divided among “nieces and nephews” by will then, should be a simple matter. Not always, as circumstances and relationships may change from the time a will is made to the date of death.
Keeping an original will safe and secure is one thing, (for more on storing a will click here), but as a practical matter, it is also important to let executors know, or family or a trusted friend, of its whereabouts.
But what if for some reason an original will cannot be located? What can be done? Does it mean the intestacy rules have to apply?
Why make a will and what can it do?Why make a will and what can it do? Dying without leaving a will, or leaving an invalid one, is to die intestate. Dying intestate means property left (the estate) is distributed according to the intestacy law. The intestacy law has been prescribed by legislation as the ‘default’ rules to apply in these circumstances. The problem is that the intestacy formula for distribution may not produce the desired outcome.