Where Should We Look To Find A Will Of Someone Who Has Just Died

 

“How do we find Mum (or Dad’s) will?” is one of the most common questions we get asked.

The short (and disappointing) answer is that there is no easy way. There is no single repository of Wills, and a Will does not need to have been registered.

Wills are generally kept by individuals among their papers, in safe storage by lawyers who prepared the Will, or in central repositories such as the Will Safe operated by the Office of the NSW Trustee and Guardian.

To try to find the will look to the following:

• Search among the deceased’s personal papers and effects for the will, or any other document (such as correspondence from lawyers) that may provide more information
•  Search the deceased’s emails for information. Most lawyers send copies of correspondence by email
• If the deceased was a widow/widower try to find out about their late spouse’s will
• Contact any lawyers the deceased had any contact with (even if it was for an unrelated reason such as a personal injury claim or a conveyance) and ask them if they hold the will or know who does;
• Contact the Office of the NSW Trustee and Guardian and ask if the Will is in their Will Safe repository – you can submit an enquiry online to find out whether they hold a Will of a deceased person. From 2002 until 28 March 2014 the NSW Registry of Birth Deaths and Marriages (BDM) operated a Wills Register, however this service is no longer in operation. They maintain historical information.

In the event these steps don’t work, a lawyer can be retained to send correspondence to other legal practitioners asking if they hold a will for the deceased.

What should I do if after those searches I don’t have the original Will?

In the event an Original Will in proper form cannot be located, but there are other documents that evidence the deceased’s testamentary intent (for example a letter written by the deceased as to how they wanted to dispose of their assets), it may still be possible to seek Court Orders to have those documents dealt with as if they were the original will. The law will try to give effect to what the deceased wanted rather than apply the rules of intestacy.

However, if after all searches no will can be identified, a process of intestacy will be followed. This process involves distribution of the estate in accordance with pre-determined formula and allocations. Please contact us for more information.

Who Can Access a Will?

Prior to a person’s death you are not entitled to see a copy of a Will even if you are named as a beneficiary or the executor in the Will.

Once the person has died, then you are entitled to inspect or have a copy of the Will if you are:

• A person named or referred to in the Will whether as a beneficiary or not.
• A person named or referred to in an earlier Will as a beneficiary of the deceased.
• The surviving spouse, de-facto spouse or child of the deceased.
• A parent or guardian of the deceased.
• A person who could be entitled to a share of the Estate of the deceased if the deceased had died intestate. Depending on what relatives the deceased had, this can include grandchildren, cousins, parents and others.
• Any other person who is entitled to inspect the will of a deceased person under section 54 of the Succession Act 2006 (NSW).

If you fall under one of the above categories, then you can contact the executor of the Estate, the solicitors acting for the Estate and ask for a copy of the Will. If probate has been sought, then you can contact the Supreme Court and seek a copy of the Will and probate documents from the Court.