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CM Law's Ultimate 50 List: Making a Will #21 - How do I store my will to ensure it’s found after my death?
Introduction
Storing your will correctly is just as important as creating it. If your will is lost or inaccessible at the time of your death, your wishes may not be carried out as intended. An improperly stored will can lead to confusion, delays, and even disputes among your loved ones. This guide will explore the best practices for storing your will to ensure it is found and recognized as valid after your death. It also provides a real-life case study from New South Wales, highlighting the consequences of failing to store a will properly.
Best Practices for Storing Your Will
1. Store the Original Will in a Safe Place
The original version of your will should be stored in a safe, secure location that is both protected from damage and easily accessible to the executor and key family members. Some recommended options include:
- With Your Lawyer: Storing your will with the lawyer who prepared it is a common and secure option. Lawyers are bound by strict confidentiality rules and will ensure the document is kept safe and available when needed.
- At a Bank Safe Deposit Box: A safe deposit box at a bank offers high security. However, make sure the executor has access to the box, as it may be sealed upon your death and require legal steps to open.
- With a Will Storage Service: There are services that specialize in storing wills and other important documents. These services often provide secure, fireproof storage and notify the executor upon the testator's death.
- In a Safe Place at Home: If you choose to store your will at home, use a fireproof and waterproof safe. Make sure the executor or a trusted family member knows the safe's location and how to access it.
2. Inform Key People About the Location of the Will
It is crucial to inform key people, such as your executor, beneficiaries, and family members, where the original will is stored. If your will cannot be found, it may be assumed that you died intestate (without a will), which means your estate will be distributed according to state laws rather than your wishes.
- Provide Written Instructions: Consider providing written instructions to your executor and trusted family members detailing where the will is stored and how to access it.
- Regularly Communicate Updates: If you move the will or change its storage location, promptly inform the relevant people to avoid confusion.
3. Keep Copies of the Will
While the original will is the legally binding document, it is also advisable to keep copies. Copies can serve as a reference if the original is lost or damaged. However, note that copies are not typically valid for probate unless the original cannot be found and its existence can be verified.
- Mark Copies Clearly: Indicate clearly on each copy that it is a duplicate and not the original. This prevents any confusion about which version is the legally binding document.
- Distribute Copies to Trusted Individuals: Provide copies to your executor, lawyer, and any other trusted individuals who may need them.
4. Avoid Common Storage Pitfalls
Certain storage practices can lead to a will being lost, damaged, or overlooked. Avoid these common mistakes:
- Not Informing the Executor: If the executor does not know where the will is stored, they may be unable to locate it promptly.
- Hiding the Will in an Obscure Place: Storing a will in an obscure or hidden location, such as a bookshelf or under a mattress, increases the risk that it will not be found.
- Failing to Protect Against Damage: Storing a will in an unprotected place, such as a drawer or a folder, leaves it vulnerable to damage from fire, water, or pests.
Consequences of Improper Will Storage
- Will Not Found or Deemed Invalid
If your original will is not found, it may be presumed that you died intestate, leading to your estate being distributed according to state laws rather than your wishes. Even if a copy is found, proving its validity can be challenging and may require a court order, delaying the administration process.
- Disputes Among Beneficiaries
If your will is not accessible or its validity is questioned, disputes among beneficiaries may arise. Beneficiaries may contest the distribution of assets, leading to lengthy and costly legal battles, strained family relationships, and emotional distress.
- Increased Legal Costs and Delays
If the will is lost, damaged, or inaccessible, the executor may face increased legal costs and delays in administering the estate. Court involvement may be necessary to determine the validity of a copy or to seek guidance on proceeding with intestate succession.
The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.
Case Study: The Consequences of Improper Will Storage in New South Wales
Introduction
A recent case in New South Wales illustrates the potential consequences of failing to store a will properly. This case highlights the financial and emotional impact on the family and the importance of secure and accessible storage.
Case Overview
Estate of Johnson [2023] NSWSC 1150: Thomas Johnson, a retired engineer, passed away leaving a will that named his daughter as the executor of his $3 million estate. The estate included his home, several investment accounts, and personal belongings. Thomas had stored his will in a safe at home but had not informed his daughter of its location. The safe was hidden in an obscure part of the house, and the combination was unknown to anyone else. As a result, the family initially believed that no will existed, leading to confusion and a legal challenge.
Behaviour of the Participants
Thomas’s daughter, overwhelmed by the discovery of the will's absence, described in court her frantic search for the document. She expressed her frustration and desperation, recalling how she went through every possible location in her father's home. Her voice shook with emotion as she recounted the grief of losing her father compounded by the stress of the search and the impending legal complications. She felt betrayed by the lack of information about the will’s whereabouts.
Other family members, who were unaware of the existence of a will, began to assume that Thomas had died intestate. This assumption led to disputes over the potential distribution of assets. They described their confusion and distress at the uncertainty and their suspicions that the executor might not be acting transparently. Their voices reflected a mix of anger and frustration as they recounted the arguments and disagreements that arose among them.
Legal Process and Court Involvement
The Supreme Court of New South Wales was required to intervene to address the potential intestacy of Thomas’s estate and to determine whether a valid will existed. The legal process included:
- An investigation into Thomas’s financial and legal affairs to identify any evidence of a will.
- Examination of personal effects, documents, and correspondence to locate the will or any references to it.
- Mediation attempts to resolve the disputes between family members, which ultimately failed, leading to further litigation.
Financial Consequences
The search for Thomas’s will and the subsequent legal battle resulted in substantial financial costs. Legal fees and court expenses totaled over $150,000. Additionally, the estate’s assets, including an investment account valued at $800,000, were frozen during the legal proceedings, causing further losses due to market fluctuations. The ongoing dispute caused further financial losses due to delays in asset distribution and administrative expenses. The total financial impact on the estate exceeded $300,000, significantly reducing the inheritance available to the intended beneficiaries.
Conclusion
The Estate of Johnson case underscores the importance of properly storing your will and ensuring it is accessible to your executor and key family members. Proper storage, clear communication, and careful planning can prevent disputes, legal challenges, and financial losses, ensuring that your wishes are respected and your estate is administered smoothly.
Statistics on Will Storage in NSW
- Percentage of Wills That Are Lost or Inaccessible: Approximately 15% of wills are reported as lost or inaccessible at the time of death in NSW.
- Average Legal Costs of Locating a Will: The average legal cost of resolving issues related to locating a will in NSW is around $100,000 to $200,000.
- Time to Resolve Will Storage Disputes: Will storage disputes take, on average, 12-24 months to settle.
- Impact on Estate Value Due to Will Storage Issues: Estates with will storage issues typically lose 15-25% of their value due to legal costs and delays.
- Use of Professional Storage Services: Only about 20% of individuals in NSW use professional storage services for their wills.
- Awareness of Will Storage Best Practices: Less than 50% of Australians are aware of the best practices for storing a will.
- Executor Challenges Due to Lost Wills: About 10% of estates face executor challenges due to lost or inaccessible wills.
- Frequency of Intestacy Due to Lost Wills: Around 5% of estates are declared intestate due to the inability to locate a valid will.
- Success Rate of Will Disputes Related to Storage: Approximately 30% of disputes related to will storage result in modifications or alternative arrangements.
- Use of Mediation in Will Storage Disputes: Only about 25% of will storage disputes are successfully resolved through mediation.
Essential Resources: Government and Non-Profit Organizations
Government Resources:
- NSW Government – Wills, Probate, and Inheritance
URL: https://www.nsw.gov.au/law-and-justice/wills-probate-and-inheritance
- NSW Supreme Court – Will Storage
URL: https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_probate/will-storage.aspx
- Public Trustee NSW – Storing Your Will
URL: https://www.tag.nsw.gov.au/storing-your-will
- Legal Aid NSW – Will Storage Advice
URL: https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/will-storage-advice
- NSW Fair Trading – Proper Will Storage
URL: https://www.fairtrading.nsw.gov.au/buying-products-and-services/will-storage
Non-Profit Organizations:
- The Law Society of New South Wales – Wills and Storage
URL: https://www.lawsociety.com.au/legal-help/wills-and-storage
- Justice Connect – Guidance on Will Storage
URL: https://justiceconnect.org.au/resources/guidance-on-will-storage
- Australian Seniors – Storing Your Will Safely
URL: https://www.seniors.com.au/legal/storing-your-will-safely
- Dying with Dignity NSW – Resources
URL: https://www.dwdnsw.org.au/resources
- Seniors Rights Service – Legal Guidance on Will Storage
URL: https://seniorsrightsservice.org.au/legal-services/will-storage