Missing wills and lost wills – suggestions on where to start searching
Missing wills are more common than you think. When the original will of a deceased person can’t be found, the task of finalising their affairs and administering their estate becomes more complicated, time-consuming and costly. It is therefore worthwhile to undertake methodical searches of the deceased’s residence, thoroughly searching high and low for a will or testamentary document, including the garage, shed and the like. But what else can be done? Some suggestions follow as to where enquiries might be made.
Missing wills – where to look?
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 a storage facility exists. If the deceased had lived in different states or territories, it make be worth checking with the public trustee in each jurisdiction.
At the time of writing, the Public Trustees in New South Wales, Victoria and Western Australia all provide will storage facilities. How to enquire whether or not they hold the will of a deceased person is different in each case, see 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 provides a will storage facility called the WA Will Bank. They won’t disclose whether they hold a person’s will without a valid written request from an authorised third party. Contact the WA Public Trustee as to more information on the process first, on how to find out if they hold the will of a deceased person.
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. For other states and territories enquiry could 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 wills register. Solicitors may place an advertisement in the monthly Law Society Journal which is available to practising lawyers in NSW along the lines of that below:
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.
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.
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.
Supreme Court of New South Wales – Probate
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.
Missing wills – 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, who offers various storage services, information here.
The Commonwealth Bank also offers safe storage or custodian services to customers 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.
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.
Missing wills stored overseas
If the deceased divided their time between Australia and another country, leaving property in both, is it possible a testamentary document or will made for Australian assets, (assuming this was done), was kept overseas? Have searches of that residence and appropriate local enquiries of will-keeping facilities, or solicitors been made?Would there be other family, former spouses, partners, children, friends who may have custody of a testamentary document?
If relevant searches are difficult to do from Australia, the services of a genealogy research firm or local lawyers in the relevant country could be sought for assistance. For example probate research genealogist firm Finders International at https://www.findersinternational.co.uk/ offers diverse searching services in England, Scotland and Ireland, and other countries, contact them here.
Lost or missing wills are not that uncommon
The difficult situation of an original will of a deceased person being lost or missing seems to occur more often than one would think, from the number of monthly advertisements by solicitors regarding the whereabouts of a lost will in the New South Wales Law Society Journal. And the reported weekly enquiries about lost wills to the SA Law Society which prompted them to establish a central register.
Copy of a missing or lost will
Sometimes a copy of a missing or lost original will is found (copy will). In situations of a lost original will after the death of the willmaker, and where it was known or most likely to be in their possession, the law presumes that the now deceased willmaker destroyed the will with the intention of revoking it. This is a rebuttable presumption however, and in some situations a copy will has been admitted to probate.
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 people, perhaps for good reason, go to great lengths to hide their original wills, 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 the original will is kept or its whereabouts is helpful to avoid delay in estate administration.
Last updated 11 November 2020.
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