If a deceased person’s will cannot be found, it will be presumed that there was no will. Therefore, “Where should we look to find mum/dad’s will?” is one of the first and most common questions we are asked. Unfortunately, there is no single place for storing a will and there is no requirement for a will to be registered.
Some of the most common places people store wills are with their other important documents, with the lawyers that drafted the will or with the Office of the NSW Trustee and Guardian in their ‘Will Safe’. Some places to start your search are:
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;
the deceased’s emails. 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;
to contact any lawyers the deceased had engaged (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;
to 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. While this service is no longer in operation, they do maintain historical information.
In the event these steps don’t work, a lawyer can be retained to send correspondence to other legal practitioners or post a notice 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 that an original will cannot be located, but there are other documents that evidence the deceased’s testamentary intentions (such as a letter or note 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, the deceased will be said to have died “intestate” and the law will distribute the assets in their estate in accordance with pre-determined formula.
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 a person has died, you are entitled to inspect or have a copy of their 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.
A range of other persons are entitled to inspect the will of a deceased person under the Succession Act 2006 (NSW). For further assessment, please contact us.
If you fall under one of the above categories, you can contact the executor of the estate, or 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.
Want to learn more? Ready to talk to a lawyer? Get in touch with us.