Missing wills and lost wills – suggestions on where to search
Lost or missing wills are more common than you think. This unfortunate situation makes the task of finalising a deceased estate more complicated, time-consuming and costly.
Undertake methodical searches of the deceased’s residence. Thoroughly searching high and low, literally, including the garage, shed and the like are starting points. What else can be done? Some suggestions follow as to where enquiries might be made.
1. Solicitors and Law Societies for missing wills
Some Law Societies assist their solicitor members to find out whether another solicitor or firm in that state/territory may be holding the will of a deceased person, see below. Enquiry can be made directly to their Law Societies as to any arrangements for tracking down missing wills.
New South Wales
The NSW Law Society does not keep a register of wills. Solicitors may place an advertisement in the monthly Law Society Journal along the following lines:
Would any solicitor, firm or person holding or knowing the whereabouts of a will, or other testamentary document of (insert name of deceased) late of (insert their address or if recently moved, formerly of previous address) who died on (insert date) please contact (state your name or name of your lawyer and contact details).
To place an advertisement in the Law Society Journal visit their website at www.lawsociety.com.au/advertise with us/.
New South Wales – the City of Sydney Law Society
The City of Sydney Law Society (CSLS), a Regional Law Society has an enquiry page for missing wills and documents. This is to assist anyone trying to locate an original will. To make an enquiry pay a fee and completing the Missing Wills and Documents submission form with details of the missing will or document. They then circulate the details among solicitor members. Anyone who might have knowledge of any will or document purporting to embody the testamentary intentions of the deceased person will respond.
Australian Capital Territory
The Law Society of the Australian Capital Territory invites members of the public and legal practitioners to Submit a Missing Will Notice to the ACT Law Society free of charge on their website. The missing will notice is published in their fortnightly e-newsletter Hearsay and on the members-only area of the website for a short period.
The South Australian Law Society does have a centralised, online wills register containing the location of South Australian Wills – providing they have been registered with this service. It was established to permit legal practitioners to track down lost wills and is for the use of solicitors only. Contact the South Australian Law Society directly or a solicitor in that State.
Tasmania – missing wills enquiries
The Law Society of Tasmania assists people locate the whereabouts of a missing will or deed by emailing Tasmanian law firms with details of the missing document, once they are provided to them. More information on this service can be obtained from the Law Society.
2. Probate Courts
Some Probate Courts, a division of the Supreme Court in each state/territory maintain a will storage facility.
Probate Court of New South Wales
The Registrar of the Probate Court in New South Wales is authorised under the Succession Act 2006 (NSW) to hold original wills deposited there for safekeeping. Section 52 of the Act sets out the procedure for retrieving a will if it was deposited at the Registry and who is entitled to apply.
3. Missing wills in bank deposit boxes
Banks traditionally offered deposit box storage services to their clients. It may be that the deceased deposited their original will at their local branch, if it is known where they banked. For example enquiries might be directed to Westpac. It offers various storage services, information here.
The Commonwealth Bank also offers safe storage or custodian services to customers, go here. Note that with any enquiry to potential holders of such important documents such as wills, there will be particular requirements for appropriate identification and proof.
4. Enquiries at Public trustees for missing wills
A starting point might be to contact the public trustee in the state or territory where the deceased had lived, in case they had consulted them to make a will. However using the public trustee does not necessarily mean that the will was stored with them. If the deceased had lived in different states or territories it make be worth checking with the public trustee in each jurisdiction. How to enquire whether or not they hold the will of a deceased person is different in each case see further below.
New South Wales
In Victoria executors may contact the Victorian Will & Powers of Attorney Registry administered by State Trustees for assistance in locating a deceased persons’ will. The deceased may have recorded the location of their original will with them.
It may be that the will was stored with the Victorian Will Bank set up by State Trustees (the public trustee). Contact them to enquire.
In WA the WA Public Trustee once provided a will storage facility called the WA Will Bank. It is now unclear whether this is something they still do. At the time they wouldn’t disclose whether they held a person’s will without a valid written request from an authorised third party. Contact the WA Public Trustee as to more information on how to find whether they hold the will of a deceased person you are looking for.
5. Self-storage facilities
In more recent times private storage operators have established deposit storage boxes for rent. If all else fails, it may be worth finding out whether the deceased used one of these in the area they last lived.
6. International, overseas wills storage
Where a deceased has left property in Australia and another country it is possible testamentary documents were kept overseas. This may include a will for their Australian assets assuming one was made. Make searches of Australian and overseas property and appropriate local enquiries of will-keeping facilities, or solicitors. Would there be other family, former spouses, partners, children, friends who may have custody of a testamentary document?
Undertaking detailed searches can be difficult to from Australia. In these situations the services of a genealogy research firm or local lawyers in the relevant country may help. For example probate research genealogist firm Finders International at https://www.findersinternational.co.uk/. It offers diverse searching services in England, Scotland and Ireland, and other countries.
Missing wills and probate – can a copy be used?
A lost original will of a deceased person occurs more often than you would think. In New South Wales there are always some advertisements for the whereabouts of missing wills in the Law Society Journal. Weekly enquiries about lost wills to the South Australian Law Society prompted them to establish a central register.
When an original will can’t be found it is assumed it was intentionally destroyed
If an original will cannot be found after death, and it was known or most likely to have been in the deceased’s possession, the law presumes that they intended to destroy the will with the intention of revoking it. However the law also provides that this presumption is rebuttable.
Sometimes a copy of a missing or lost original will is found (copy will). In limited situations such a copy will has been admitted to probate.
Reducing the chances of losing an original will
Different scenarios can lead to a missing will. Law firms can change names, are bought, sold, a sole practitioner retires, people move house and so on. Some, perhaps for good reason, go to great lengths to hide their original wills. Others use safe deposit boxes at banks and elsewhere. Or leave with their solicitors, if not keeping at home. Read more on storing a will here. Informing your executors as to where your original will is kept is helpful to avoid delay in estate administration.
B Stead BHS Legal Last updated 17 October 2022
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