Bowen Buchbinder Vilensky

Archive for July, 2017

When there is no Original Will, there is still a Way!
Friday, July 21st, 2017

This one (3)

Daniel Yazdani, Solicitor at Bowen Buchbinder Vilensky Lawyers

21 July 2017

You have invested a lot of time and money into having a carefully crafted Will prepared as part of your estate planning.

What happens if some time later you look for your Will and you cannot find it?

This question has been frequently asked. But why is finding the original Will important? The answer is: your original Will is required to be provided to the Supreme Court of Western Australia as part of your Executor’s Application for a Grant of Probate of your Will.

What happens if an Executor can only find copies of the signed Will?

Although it is procedurally more difficult, a copy of a Will can (in certain circumstances) be admitted for a Grant of Probate.  In these cases, the Supreme Court must be satisfied that the copy of the Will reflects the last Will of the deceased person concerned.

If only copies of a Will can be found in the deceased’s personal effects, the starting point is to contact the deceased’s lawyers to see if they have retained the original Will in safe custody. If that fails (or if it is unclear who the deceased’s lawyers were), the following steps should be taken:

1. contact the Public Trustee to see if the Will is stored in their “Will Bank”;
2. publish a notice of a lost Will in the West Australian Newspaper;
3. contact the Law Society of Western Australia and publish a notice for a lost Will in the legal profession’s monthly newsletter;
4. contact the deceased’s bank to see if the original Will was stored in the bank’s safe.

If the above searches have been undertaken and the original Will has still not been found but copies of the Will (which are believed to be the last Will of the deceased) are available, then the Executor will need to apply to the Supreme Court of Western Australia for a Grant of Probate of the lost Will.

In order to obtain a Grant of Probate of a lost Will, the Court must be satisfied of the following:

1. that there actually was a valid and signed Will;
2. this Will revoked all previous Wills;
3. that the legal presumption that the Will was destroyed by the Will-maker with the intention of revoking it has been successfully rebutted;
4. that the terms of this Will are clear and established.

How to Avoid this Problem?

As soon as you have signed your Will and any other estate planning documents (such as your Enduring Power of Attorney, Enduring Power of Guardianship, Advanced Health Directive and any Superannuation Death Benefit Nomination Forms), you should store the originals in a secure location.

Whilst it is not required for you to provide a copy of your Will to your Executor and/or loved ones, it is recommended that you should at least inform them of where the original Will is stored. Your lawyer who has drafted the Will should also keep a signed copy of your Will in his or her records.

By taking the right steps to ensure the safe storage of your estate planning documents, and by letting the right people know where to find such documents, you will save your loved ones considerable time, stress and unnecessary expenses in the administration of your estate.

Please contact Daniel Yazdani at dyazdani@bbvlegal.com.au if you wish to discuss this matter further or wish to go discuss your estate planning objectives.

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