If you are a spouse or child of a person who has died, one of the first and most important questions to ask is “Is there a Will?”
This question is important and reflects a reasonable enquiry to be made at the earliest opportunity. It should not be misconstrued that a person asking such a question is solely interested in financial gain from the estate.
On a practical level, it is the executor named in a Will who is responsible for making decisions and arrangements about the funeral. From a legal perspective, the deceased person’s property devolves to the executor named in a Will immediately on death, and that person may have to take prompt action to identify, locate, secure or take custody of the deceased’s property.
In some situations there can be considerable suspicion and angst around the location and terms of a Will. In circumstances where family relationships are complex or strained, or where trust between family members is low, it is very important for the person making a Will to ensure that their last Will is safely held and can be easily located on their death.
Safe Keeping of Wills
There is no register of Wills made by people either in Queensland or Australia.
A Will is a confidential legal document. It is up to the person who makes a Will to decide where they will keep it and how to ensure it is kept safe and can be located upon their death.
If a person consults a solicitor to make a Will it is common for the law firm to offer to hold the original document in safe keeping and the client is given a copy of the Will to keep with their records at home. This is also the common practice of Wills made with the Public Trustee.
It is a prudent step for anyone who makes a Will to inform at least the person named as executor in the Will that a Will has been made and the location of that document.
Where should I look for the original or a copy of a Will?
Common places to search or make enquiries for an original or a copy of a Will include:
- Home – You may need to search the person’s personal records at their home, including any filing cabinet, safe, desk or a set of drawers where you know the person keeps important documents. Sometimes people keep their documents in unconventional places (for example, in a tin in a garage, in a box below floor boards, or a private drawer in a bedroom). A thorough search is required if nothing is found in the common or expected places.
- Solicitors – you should enquire with any law firms that the person ever used or had a connection with to see if they hold or have any records about any Wills made by the deceased. If a law firm has been sold or merged with another firm, often the documents held in safe custody will be transferred as part of the business to the new firm, so it can be necessary to track the changes in a law firms history to know which firm may now hold the Wills of a previous firm.
- Queensland Law Society – the Queensland Law Society holds wills and other documents of clients of law firms who have been placed in receivership.
- The Public Trustee – the Public Trustee holds Wills on behalf of clients who have made their Wills with the Public Trustee but may also have records of other Wills.
- Bank – this is less common but it is prudent to check that the deceased did not have any Wills held in safe keeping or in a custody box with their bank.
When conducting searches for a person’s Will it is important to bear in mind that the Court has power to determine that informal documents can be considered a Will. This means you may have to carefully consider if there any documents of a testamentary nature which could be a Will (for example, a draft Will saved on a computer, a printed or handwritten document or Will Kit form which was never signed, a handwritten note, or a letter, text message or video regarding what would happen to the person’s property on their death).
Who is entitled to see or obtain a copy of a Will
The Executor is the only person entitled to possession of the original Will of a person upon that person’s death.
However, the following people are entitled to inspect or obtain a certified copy of a Will following the person’s death:
- a person mentioned in the will; or
- a person mentioned in any earlier will; or
- a spouse, parent or child of the deceased; or
- a person who would be entitled to a share of the estate if the person had died without a will (under the rules of intestacy);
- a parent or guardian of a minor mentioned in the will or who would be entitled to a share of the estate if the person had died without a will (under the rules of intestacy);
- a creditor or other person who has a claim at law or in equity against the estate; or
- a person who can make a claim for further provision from the estate (for further information on this please see our Guide: Have you Been Left Out of a Will). – insert link
What if the original Will cannot be located?
Sometimes a situation arises where a copy of a Will has been found, but the original is unable to be located. The Executor in this situation has to carefully consider and decide (based on all the information and evidence available to them) if:
- The circumstances would suggest that the deceased destroyed the original will (with the intention of revoking it); or
- The original is simply lost or missing and it is appropriate to apply for a Grant of Probate of the copy of the Will, supported by an affidavit outlining all the searches which were conducted and any evidence which suggests the deceased intended the Will (of which there is a copy) to be his or her last will.
If an original Will cannot be located, it will undoubtedly add complexity, cost and delay to the administration of an estate. In this context, ensuring the safe keeping of your original Will is as important as the making of the Will itself. Further, each time you change or update your Will, make sure you let your executor and family know and advise them of the location of the new Will.