Finding a Will in Australia
Losing a loved one is often an emotionally overwhelming experience. Managing legal matters during grief can add another layer of complexity. In most cases, those closest to the deceased must manage the administrative burden created by death.
A crucial document in these circumstances is the Last Will and Testament. A Will outlines the deceased person’s wishes regarding asset distribution. It may also set out instructions for children, pets, and other important matters.
Unfortunately, the location of a Will is often not obvious. Locating it is frequently a source of frustration during estate administration.
What Makes a Will Valid?
In Australia, a Will is generally valid if it is in writing, signed by the testator, and witnessed by at least two competent witnesses who also sign the document.
Each state and territory sets out its own legal requirements for a valid Will.
If a document does not meet these requirements, it is considered an “Informal Will”. This can occur even if the document clearly reflects the deceased’s wishes.
For example, a Will that is not properly signed or witnessed will fail to meet legal requirements. However, in some cases, a court may still admit an Informal Will to probate.
How Do You Locate a Will?
The first step is to search the deceased’s home for a physical copy of the Will. Check secure places such as safes, filing cabinets, or storage areas used for important documents.
You should also check whether the Will is held in safe custody with a bank or storage facility. These institutions may confirm whether a safe deposit box or storage unit exists.
Contacting the deceased’s lawyer is also important. Lawyers often store the original Will or know where it is held.
You can also check with the relevant Supreme Court registry. Some Wills are registered, although most are not.
Finally, you can conduct a Probate Search at the Supreme Court. This may show whether probate has already been applied for or granted.
Legal Assistance
If a Will cannot be located, you may need legal advice. A lawyer experienced in probate and estate matters can provide guidance.
They can explain your legal obligations and help you manage the estate if the original Will is missing.
Legal advice can also help reduce disputes and ensure the estate is administered correctly.
Do You Need the Original Will?
In Australia, lawyers often prepare multiple copies of a Will. The original is usually stored securely, while the testator may keep a copy.
Families often find only a copy after death. However, the original Will is the key legal document for probate.
The original document carries the most legal weight and is generally required for probate.
If the original cannot be found, a copy may still be accepted in limited circumstances. This depends on proof that:
- The copy is authentic
- The original was not intentionally destroyed
- The copy reflects the deceased’s true intentions
A copy Will can complicate probate. It may also lead to delays or disputes between beneficiaries.
For this reason, it is important that original Wills are stored safely with a lawyer, executor, or secure storage facility.
Conclusion
Locating a Will requires patience, careful searching, and often legal assistance. A structured approach increases the chances of finding the document.
Although the process can be challenging, locating the original Will is important. It ensures the deceased’s wishes are properly honoured and the estate is correctly administered.
This information is general only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 5576 9999 or email
[email protected].
