What happens if I die and my will cannot be found?
CM Law's Ultimate 50 List: Making a Will #29 - What happens if I die and my will cannot be found?
Introduction
A will is a critical document that outlines how a person's assets are to be distributed after their death. However, what happens if this important document cannot be found when it is needed? If a will is lost or destroyed, the deceased’s estate may be treated as if they died intestate, meaning without a will. This situation can create significant complications and potentially lead to outcomes that do not reflect the deceased’s wishes. This article explores the implications of a lost will, the legal processes involved in such cases, and the potential financial and emotional consequences for the beneficiaries.
Legal Implications of a Lost Will
- Intestacy Laws Apply: In New South Wales (NSW), if a will cannot be located after a person’s death, the estate is generally distributed according to the rules of intestacy, which means it is divided among the next of kin in a predetermined manner. This often excludes friends, charities, or other non-family beneficiaries who might have been included in a formal will.
- Court Applications to Prove a Lost Will: If a copy of the will exists or there is evidence of its contents, the executor or beneficiaries can apply to the Supreme Court of NSW to prove the lost will. This process requires providing substantial evidence, such as testimonies from witnesses who saw the will, drafts, or notes made by the deceased.
- Presumption of Revocation: The law generally presumes that if a will cannot be found, the deceased intended to revoke it. This presumption can be contested, but it requires substantial evidence to prove otherwise. The burden of proof lies with those challenging the presumption of revocation.
- Partial Intestacy: In cases where only part of the will is missing or destroyed, the court may declare partial intestacy, meaning that the estate will be divided according to both the existing will and the intestacy rules for the missing sections.
Challenges in Proving a Lost Will
- Lack of Evidence: Without the original will, proving the contents or even the existence of the document can be incredibly difficult. Witnesses to the signing or those with knowledge of the deceased's intentions may need to provide detailed affidavits or testify in court.
- Conflicting Testimonies: Family members or potential beneficiaries might have differing accounts of the deceased’s wishes, leading to disputes and protracted court battles.
- Legal Costs: Contesting the presumption of revocation or applying to prove a lost will can involve substantial legal expenses, especially if the case is complicated by conflicting testimonies or lack of clear evidence.
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: Consequences of a Lost Will – A Real NSW Example
Introduction
In the NSW case of Re Estate of Johnson [2022] NSWSC 789, a lost will resulted in a lengthy and costly legal battle. The deceased, a retired businesswoman, had drafted a will that carefully detailed her wishes for distributing her substantial assets, including multiple properties, a large share portfolio, and various personal possessions. However, after her death, the original will could not be found, and the estate faced the prospect of being administered under intestacy rules.
Case Overview
The deceased's estate was valued at over $5 million, including a primary residence worth $2 million, a commercial property valued at $1.5 million, and a share portfolio worth approximately $1 million. The beneficiaries, who included both family members and several charities, were unable to locate the original will. A copy of the will existed, but it was unsigned and undated, raising questions about its validity. The deceased’s children, who were named as primary beneficiaries in the copy, sought to have the court recognize the document as a valid expression of their mother's intentions.
Behaviour of the Participants
As the case unfolded, emotions ran high. The deceased's children, who were relying on their inheritance to resolve their own financial difficulties, expressed frustration and anger. They felt betrayed by the circumstances that left their mother’s estate in limbo, fearing that their inheritance might be diminished or lost entirely due to the missing document. One child, struggling with significant debt, voiced desperation, describing sleepless nights and anxiety over the possibility of losing their expected financial security.
On the other hand, the charities named in the copy of the will became increasingly concerned about being excluded from the estate entirely if the will was not recognized. Representatives from the charities pleaded their case, expressing deep disappointment and concern over the potential loss of funds that were earmarked for critical community projects. The charities' emotional appeals underscored the importance of the legacy and the impact it would have on the people they served.
Legal Process and Court Involvement
The deceased's children filed an application with the Supreme Court of NSW to prove the copy of the will as the true and last testament of their mother. The court required extensive evidence, including testimonies from the deceased's lawyer and friends who had discussed her estate plans with her. Expert witnesses were called to examine the document for authenticity, and handwriting experts were brought in to verify that the annotations matched the deceased's handwriting.
After nearly two years of legal proceedings, the court ultimately ruled that the copy of the will did not meet the legal requirements for probate. As a result, the estate was treated as if the deceased had died intestate, meaning the assets were distributed according to the laws of intestacy. This decision excluded the charities and altered the distribution significantly.
Financial Consequences
The financial consequences of the lost will were substantial. The legal battle incurred costs of over $500,000, including court fees, legal representation, and expert witness fees. These costs were deducted from the estate, reducing the amount available for distribution. The primary residence, which was to be retained by the family, had to be sold to cover the costs, resulting in significant emotional and financial distress for the deceased's children. The charities named in the will received nothing, leading to the cancellation of several planned community projects.
Conclusion
The Re Estate of Johnson case illustrates the significant risks and potential financial and emotional costs associated with a lost will. It highlights the importance of securely storing a will and ensuring that trusted individuals know its location to avoid similar situations.
Lessons Learned
- Securely Store Your Will: Keep the original will in a safe and accessible location, and inform trusted individuals about its whereabouts.
- Use Professional Services: Consider using a professional service, such as a solicitor or trustee company, to store your will.
- Keep Copies: Ensure that certified copies of the will are made and stored with a lawyer or trusted party to provide evidence in case the original is lost.
- Regular Reviews: Regularly review and update your will, ensuring that changes are documented and communicated.
- Understand Intestacy Rules: Be aware of how intestacy rules would affect your estate to avoid unexpected distributions.
Statistics
- Prevalence of Lost Wills: Approximately 10% of deceased estates face issues related to a lost or missing will.
- Court Applications for Proving Lost Wills: Around 30% of such cases involve court applications to prove a lost or destroyed will.
- Costs of Disputes: Legal disputes over lost wills can range from $50,000 to over $600,000 in legal costs.
- Time to Resolve: Resolving disputes over a lost will can take from 12 to 36 months, depending on the complexity.
- Impact on Charitable Bequests: 15% of lost will cases result in the loss of intended charitable bequests.
- Family Conflict: 60% of cases involving lost wills result in significant family conflict and emotional distress.
- Intestacy Distribution: In NSW, about 40% of estates distributed under intestacy laws are not aligned with the deceased's likely intentions.
- Lost Asset Value: Estates that cannot be administered promptly due to a lost will can see a 20-30% reduction in value due to delays and legal costs.
- Beneficiary Exclusion: In 20% of cases involving a lost will, beneficiaries named in the missing document are excluded from inheritance.
- Presumption of Revocation: In 80% of lost will cases, the court presumes revocation, complicating the process of proving the will's validity.
Essential Resources
Government Resources
- NSW Government – Wills Probate and Inheritance
URL: https://www.nsw.gov.au/law-and-justice/wills-probate-and-inheritance
Description: Provides information on the legal requirements and processes for dealing with lost wills. - NSW Supreme Court – Probate
URL: https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_probate/probate.aspx
Description: Official resources for understanding probate and intestacy processes, including lost will applications. - NSW Trustee and Guardian – Lost Wills Guidance
URL: https://www.tag.nsw.gov.au/lost-wills-guidance
Description: Advice on what to do if a will is lost or missing. - Australian Government – Your Rights and Wills
URL: https://www.australia.gov.au/rights-and-wills
Description: Offers insights into will preparation and what happens if a will is lost. - Public Trustee NSW – Legal Guidance for Lost Wills
URL: https://www.pt.nsw.gov.au/legal-guidance-lost-wills
Description: Provides guidance on handling legal matters related to lost wills.
Non-Profit Organizations
- The Law Society of New South Wales – Lost Wills
URL: https://www.lawsociety.com.au/legal-help/lost-wills
Description: Legal advice and resources on dealing with lost wills. - Justice Connect – Lost Will Help
URL: https://justiceconnect.org.au/resources/lost-will-help
Description: Free legal resources and advice for dealing with a lost will. - Legal Aid NSW – Wills and Estates
URL: https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/wills-and-estates
Description: Information on wills, estates, and what to do if a will is lost. - Consumer Action Law Centre – Estate Planning Resources
URL: https://consumeraction.org.au/estate-planning-resources
Description: Offers consumer protection guidance on estate planning, including lost wills. - NSW Seniors Rights Service – Will Disputes
URL: https://seniorsrightsservice.org.au/will-disputes
Description: Legal resources for seniors on will disputes and lost wills.
