Skip to content
Get free consultation!

Find the original will and review its contents carefully

CM Law's Ultimate List: The top 50 FAQs on Administration of Estates #3: Locate and Review Will

In New South Wales (NSW), the will is a legal document that outlines the final wishes of a deceased person regarding the distribution of their estate. It is crucial to locate the original will promptly after someone’s death, as it plays a fundamental role in determining how their assets will be distributed and who will manage their estate. Failure to find and properly review the original will can lead to legal disputes, financial losses, and delays in the administration process.

What is a Will?

A will is a legally binding document that expresses the wishes of a person (the testator) regarding the distribution of their property and assets after death. It can include details such as the appointment of an executor, instructions for funeral arrangements, bequests to specific individuals or charities, and guardianship of minor children.

Why Finding the Original Will is Crucial

The original will is essential for several reasons:

  1. Legal Validity: Only the original will is generally accepted by the Supreme Court of NSW when applying for probate. Copies or electronic versions may not be considered legally binding unless the original is lost, and a court is convinced that the copy accurately reflects the deceased's intentions.

  2. Guidance for Estate Distribution: The will provides clear instructions on how the deceased's assets should be distributed among beneficiaries.

  3. Appointment of Executors: The will names the executor(s) responsible for managing the estate, including paying off debts and distributing assets.

  4. Minimizing Disputes: An original will helps minimize disputes among potential beneficiaries by clearly outlining the testator’s intentions.

Steps to Find the Original Will

  1. Check Common Locations: The original will is often stored in a secure place, such as a safe at home, a safety deposit box, or with a trusted family member or friend. It may also be with the solicitor who prepared it.

  2. Contact the Deceased's Solicitor: Solicitors who prepared the will or handled the deceased's legal matters may have a copy or the original.

  3. Check the NSW Trustee & Guardian: If the deceased had their will prepared by the NSW Trustee & Guardian, the original will might be in their custody. Contact them for verification.

  4. Search the NSW Will Register: This is a voluntary service where people can register the location of their will, helping executors and family members locate it more easily.

  5. Review Personal Documents: Check through the deceased's personal documents, such as correspondence, insurance policies, and bank statements, which might provide clues about the existence or location of the will.

  6. Seek Professional Help: If the will cannot be found after thorough searching, it may be necessary to seek legal advice or engage a professional to assist in the search.

Reviewing the Will’s Contents

Once the original will is found, it is vital to review its contents carefully:

  1. Confirm the Executor: Identify the person or persons appointed as executors and ensure they are willing and able to act in this capacity.

  2. Identify Beneficiaries: List all beneficiaries named in the will and the assets or bequests allocated to them.

  3. Review Special Instructions: Check for any special instructions or conditions attached to specific bequests, such as age requirements or charitable donations.

  4. Examine Clauses for Ambiguities: Look for any ambiguous clauses that may need clarification to avoid future disputes.

  5. Check for Updates or Codicils: Ensure there are no additional documents, such as codicils (amendments to the will), that modify its original terms.

Case Study: The Consequences of Failing to Find and Review the Original Will

Background of the Case

In the case of In the Estate of Margaret Brown [2022] NSWSC 1478, the deceased, Margaret Brown, left behind a substantial estate valued at AUD 4 million, which included a family home in Sydney, several investment properties, a large share portfolio, and personal savings. Margaret, an 82-year-old widow, had reportedly updated her will a few years before her death to reflect changes in her family dynamics and to include new bequests to a charity she supported. However, the original will could not be located immediately after her death, leading to significant delays in estate administration.

Behaviour of the Participants

Margaret’s son, Andrew, was desperate to locate the original will, believing his late mother had revised it to account for recent events, including the estrangement of his sister, Catherine. As weeks turned into months without finding the document, Andrew grew increasingly frustrated. He combed through every inch of his mother’s house, hired private investigators, and contacted multiple law firms, convinced that someone was hiding the original will.

Catherine, on the other hand, insisted that Margaret had left the will with her lawyer, who had since retired and moved overseas. Her demeanor became more confrontational as the family tension escalated. She accused Andrew of obstructing the search and even suggested he might have destroyed the will to protect his interests. The situation grew more desperate as the family found themselves unable to access any of Margaret's assets, including her bank accounts, to cover outstanding medical bills and funeral expenses.

Legal Process and Court Involvement

The case was eventually brought before the NSW Supreme Court:

  • Application for Letters of Administration: With no original will found, Andrew applied for letters of administration, asserting that his mother had died intestate (without a will). Catherine contested, arguing that their mother had left a valid will, and requested more time to locate it.

  • Court Orders and Investigation: The court ordered a thorough investigation, including a search of the NSW Will Register and inquiries with the deceased's former solicitors.

  • Discovery of a Copy: A copy of a will, dated three years before Margaret's death, was eventually found with her financial advisor. However, the court required convincing evidence that this was the deceased's final will and that the original could not be found.

After months of legal wrangling, the court declared the copy to be the last valid will of Margaret Brown, as no further evidence suggested otherwise. The administration of the estate was finally allowed to proceed, but not before significant financial and emotional costs were incurred.

Financial Consequences

The consequences of the delay in finding and reviewing the original will were severe:

  • Legal Fees: The estate incurred legal fees amounting to AUD 60,000 due to the extended court proceedings and the need for specialized legal advice.

  • Interest on Debts: Interest accrued on unpaid medical bills and funeral expenses amounted to AUD 15,000.

  • Property Maintenance Costs: The family home and other properties were left unattended, resulting in maintenance costs and a decline in market value, estimated at AUD 100,000.

  • Impact on Beneficiaries: Beneficiaries faced delays in receiving their inheritances, causing financial strain and emotional distress.

Financial Statistics and Impact

  • Percentage of Estates with Lost or Missing Wills in NSW: 10% (Source: NSW Trustee & Guardian).

  • Average Time to Locate a Missing Will: 4-6 months (Source: NSW Law Society).

  • Average Legal Fees for Contested Wills: AUD 40,000 to AUD 80,000 (Source: Australian Legal Services Commission).

  • Average Decline in Property Value Due to Delays in Estate Administration: 5-15% (Source: Property Council of Australia).

  • Proportion of Estates with Family Disputes in NSW: 25% (Source: Australian Bureau of Statistics).

  • Average Duration of Estate Litigation Involving Lost Wills: 12-24 months (Source: NSW Supreme Court).

  • Cost of Investigating Lost Wills: AUD 5,000 to AUD 20,000 (Source: Australian Dispute Resolution Association).

  • Percentage of Wills Amended or Updated in the Last Five Years of Life: 35% (Source: NSW Trustee & Guardian).

  • Impact of Unresolved Estates on Beneficiaries’ Financial Health: Up to 20% reduction in net worth (Source: Council on the Ageing (COTA) Australia).

  • Annual Number of Wills Registered with NSW Will Register: 15,000 (Source: NSW Will Register).

Government and Non-Profit Organisation References

Government References:

  1. NSW Supreme Court. "Estate Administration Guidelines." https://www.supremecourt.justice.nsw.gov.au.

  2. NSW Trustee & Guardian. "Finding a Will in NSW." https://www.tag.nsw.gov.au.

  3. Australian Bureau of Statistics. "Family Disputes and Estate Management." https://www.abs.gov.au.

  4. NSW Law Society. "Legal Costs in Estate Disputes." https://www.lawsociety.com.au.

  5. NSW Department of Justice. "Litigation Statistics." https://www.justice.nsw.gov.au.

Non-Profit Organisations References:

  1. Property Council of Australia. "Impact of Probate Delays on Property Values." https://www.propertycouncil.com.au.

  2. Australian Legal Services Commission. "Costs of Estate Administration." https://www.legalservicescommission.sa.gov.au.

  3. Australian Dispute Resolution Association. "Mediation in Estate Disputes." https://www.adra.net.au.

  4. Council on the Ageing (COTA) Australia. "Impact of Estate Disputes on Financial Health." https://www.cota.org.au.

  5. Australian Financial Security Authority. "Managing Estates and Financial Impacts." https://www.afsa.gov.au.