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What To Do If You Can’t Find A Will

It is not unusual for it to be difficult to locate the original copy of a deceased person’s will. This is particularly the case when someone passes away unexpectedly. A spouse or family member may have a vague recollection of the deceased talking about their will, but no actual knowledge of its whereabouts. It is essential to try and locate the original will, otherwise, the law will assume that the deceased died leaving no will and is therefore intestate. This article suggests some likely places to search for a will and explains what to do when you can’t find a will in Australia.

Who To Ask When You Can’t Find A Will

The first place that the family or executor of a deceased should turn when they can’t find a will is the deceased’s solicitor. When someone prepares a will with the help of a legal professional, the testator is usually encouraged to leave the original document in the solicitor’s safekeeping. The testator will take home a copy of the will with instructions enclosed to contact the solicitor to obtain the original of the will. As this is an established practice for solicitor-drawn wills, a family that can’t find a will should ask the deceased’s solicitor. If the family does not know the identity of the deceased’s solicitor, they can contact local solicitors in the local area and ask if they hold the original will.

There is another person who you should contact if you can’t find a will. Some testators choose to store their will with the person they have selected to act as executor of their deceased estate. A testator might reason that the will should be in the hands of the person who actually needs easy access to the document. Therefore, you should contact people who you believe that the deceased trusted and might have chosen to act as their personal representative after their death.

Where To Search When You Can’t Find A Will

When a testator chooses to keep custody of the original copy of a will, the solicitor will encourage a testator to keep the will in a safe place and inform their executor and family members of the location. As the testator will likely have been advised to secure the document from fire and flood, the family should search the deceased’s house for a waterproof and fireproof metal box, or wall or floor safe. People often keep their will in a locked filing cabinet or a private home office, so that is also a logical place to search.

When the family still can’t find the will in the deceased’s home, they should next look into whether the deceased had a safe deposit box. These secure boxes are commonly located in banks, so it is best to check the deceased’s paperwork and financial statements for regular payments for this service. Typically, the bank will grant certain authorised parties access to a deceased’s safe deposit box. For instance, the Commonwealth Bank allows the next of kin or the personal representative of a deceased estate to retrieve a will from the bank’s safe custody facility.

There is no central wills register in Australia and no legal requirement to register a will. Some states and territories do offer a registry service where testators can lodge their will. For instance, the New South Wales Trustee and Guardian has a Will Safe Repository that can be used for a fee. The family of a deceased in NSW should make an online enquiry to the Repository if they can’t find a will in the usual places.

The next step is to look in more unconventional places to find the will. It is worth checking the deceased’s phone or computer to see if there is an electronic copy of the will or an “informal will”. A Supreme Court can validate an informal will even if it does not conform to regulations if it is reflective of the deceased’s genuine testamentary intention.

When You Have A Copy Of A Will But Can’t Find The Original

When the family knows that a will was made, and has a copy, but can’t find the original, the presumption is that the testator destroyed the document with the intention of revoking the will. However, an executor may attempt to rebut this assumption by applying for probate with a copy of the will. The onus is on the executor to prove that the absence of the original will is not, in fact, proof that the testator revoked the will. The Supreme Court in the state or territory will examine the circumstances, including who prepared the original will and whether it was properly executed, and look into what happened to the will after it was signed.

The process is different if a solicitor was holding the original will in safe custody and now can’t find the will. If a solicitor loses the original document, the court does not start from a presumption that the will was revoked. Instead, the solicitor who lost the will must explain to the court that they can’t find the will and how it was lost.

Hopefully, this article has provided a starting point if you can’t find a will. The solicitors at Armstrong Legal can provide advice if you still can’t find the original of a will, or believe that the deceased may have died without making a will. Please contact our offices on 1300 038 223 for any enquiries about succession law or a wills and estates matter.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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