Losing a loved one is often an emotionally overwhelming experience, and amidst the grief, managing legal matters can add another layer of complexity. Yet, it most often falls to those closest to the deceased to manage the administrative burden created by death. The most important document in such circumstances is the deceased's last Will.
A Will outlines the deceased person's wishes regarding the distribution of their assets but may also express their intentions about the care of children and pets and other critical instructions. Unfortunately, the location of this critical document is often not obvious and locating the Will is frequently a considerable source of frustration for those administering the estate.
Understanding Will Validity in Western Australia
The Wills Act 1970 (WA) outlines the formal requirements for a valid Will in Western Australia. These requirements include:
The Will must be in writing
It must be signed by the testator (the person making the Will)
The signature must be witnessed by at least two competent witnesses who also sign the WIll
The testator must have testamentary capacity when making the Will.
When a document intended as a Will does not satisfy these requirements, it is known as an "Informal Will". For example, if a Will has not been correctly signed or witnessed, it will fail to meet the requirements set out in the legislation, even if it is correct in every other aspect. In some circumstances, an Informal Will may be admitted to probate by the Supreme Court of Western Australia under Section 32 of the Wills Act 1970 (WA), even if it does not meet the strict legal requirements.
Step-by-Step Guide to Locating a Will
Immediate Steps
Search the deceased's home, focusing on:
Home safes or security boxes
Filing cabinets
Important document folders
Desk drawers
Storage areas for important papers.
Professional Searches
Contact the deceased's lawyer who may have drafted the Will
Check with local banks for safe deposit boxes
Enquire with the Public Trustee of Western Australia
Contact private trustee companies
Check with the deceased's accountant or financial advisor.
Official Registry Searches
Search the Supreme Court of Western Australia's Probate Registry
Check the WA Will Bank (operated by the Public Trustee)
Search the National Will Register if applicable
Legal Implications of Lost Original Wills
When an original Will cannot be located, there is a legal presumption that the testator destroyed it to revoke it. This presumption can be rebutted with evidence but creates significant complications in the probate process. The Supreme Court of Western Australia requires evidence to accept a copy of a Will, including:
Proof that the original Will existed
Evidence that it was not revoked
Witness statements about the Will's contents
Explanation of efforts made to locate the original
Evidence of whether any person would be disadvantaged (prejudiced) if the court accepts a copy of the Will, such as:
Known creditors of the estate
Potential beneficiaries under an earlier Will
Family members who might have rights under family provision legislation
Digital Considerations and Modern Storage
While digital copies of Wills are increasingly common, however:
Electronic copies alone are not legally valid
Digital storage should be secondary to secure physical storage
Password-protected files should have access instructions left with executors
Regular updates to storage information are essential.
Common Mistakes to Avoid
Assuming a copy is legally equivalent to an original
Failing to document search efforts
Not checking with all potential storage locations
Overlooking professional advisors
Destroying original documents accidentally
Not seeking legal help early enough.
When to Seek Legal Assistance
When a Will cannot be located using these initial strategies, you should seek guidance from a qualified legal professional experienced in estate planning and probate matters. This is particularly important in Western Australia where:
Time limits apply to probate applications
Specific evidence is required for lost Will applications
Family provision claims may be affected
Interstate assets may be involved
Prevention for the Future
To avoid future difficulties, consider:
Deposit your Will with the WA Will Bank for safekeeping
Informing executors of the Will location
Keeping a signed note of the Will's location with important papers
Regular reviews and updates of storage arrangements
Professional storage with a legal practitioner.
Conclusion
Locating an original Will requires patience, diligence and often legal assistance. Understanding the avenues available and systematically exploring each option increases the likelihood of finding the document. While it may seem daunting, the efforts put into locating the original Will are invaluable in honouring the wishes of the departed and navigating the legalities of estate distribution.
For more information or legal assistance, please contact us:
Phone: 0421 145 637
Email: val@crystallawyers.com.au
Office: 1/3 Barker Ave, Como, WA
Website: www.crystallawyers.com.au
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