More often than not, when you draft a Will with your solicitor, he or she will offer to store it for you on your behalf. Storing Wills is a common practice, but when the Will-maker (‘Testator’) fails to update their Will, or, for example, decides to move overseas for an extended period of time, Wills can become effectively ‘lost’.
While your solicitors will do their very best to ensure that this does not happen, it is not at all uncommon for clients to lose touch with the lawyers that initially assisted them in drafting their Wills. When clients fall out of touch and then eventually pass away, their surviving relatives may find themselves in the interesting position of having to distribute the Estate without a Will to guide them.
So What Do You Do?
When a person dies without a Will, they are said to die ‘intestate’. Legislation like the Administration and Probate Act 1958 (Vic) and the Wills Act 1997 (Vic) contain provisions that deal specifically with the distribution of intestates. These provisions provide a ‘one-size-fits-all’ distribution method that in many cases sits perfectly well with how a Will maker may have originally intended to distribute the Estate.
As such, the first question that an Executor or surviving relative needs to ask is whether or not the distribution of the Estate under intestacy rules departs enough from the Testator’s original intentions to warrant the expense of engaging a solicitor to ‘straighten things out’. Obtaining a grant of probate of a lost Will almost always exceeds the cost of obtaining a grant where there is an original Will.
To help reduce this cost and increase the chances of ‘finding’ the lost Will, a number of cost-effective steps can be taken. These include:
- Thoroughly searching the Deceased’s property and personal belongings for the Will;
- Contacting his or her former solicitors, financial advisors, accountants or any other provider of professional services that may have had access to the original Will;
- If the law firm under which the Deceased’s Will was drafted no longer exists, contact your State’s law institute or society – they are often able to give some indication as to where the firm’s secure deed storage was located;
- Simply ask family and friends, particularly those who may have witnessed the Will, if they know where it may be.
Making An Application for Probate of a Lost Will
Assuming none of the above worked, and that you feel it is in both the beneficiaries and the Testator’s best interest to seek a grant of probate of a lost Will, the most prudent first step to take is to engage an Estate Law specialist.
Much like obtaining probate when a Will is still available, obtaining a grant of probate for a lost Will requires that an application be made to your State’s Supreme Court. The main point of difference between the two, however, is the high evidentiary requirements on those seeking the grant of probate. An application made to obtain probate of a lost Will requires that an applicant demonstrate the following things:
1. That there was an actual Will;
2. That the Will revoked all previous Wills;
3. That there is evidence of the lost Will’s terms;
4. That there is sufficient evidence to demonstrate that the Deceased intended the document to constitute his or her Will.
Due to the high burden of proof placed on applicants, it follows that contesting this application is by contrast a fairly simple task. Therefore, it is always wise to ensure that the intended beneficiaries of the Will are all in agreement when seeking a grant of probate for a lost Will.
If the will is found and you wish to challenge it, contact Hentys Lawyers about your next steps.