What happens if you cannot find a Will?

Locating a Will

When looking for a person's Will, make sure that you have undertaken the following enquiries:

1. The first place to enquire is with any past solicitors who might have been engaged. Look among their personal belongings and see if there is any correspondence from any solicitors. Then, contact those solicitors to see if they are holding the Will.
2. Did they have a safe deposit box with any banks? You should make enquiries with the person's bank or banks to see if a bank is holding any documents on their behalf.
3. People have the option of depositing their Will with the Supreme Court. You should do a search of the Supreme Court Wills Index. You can search the Index of the Supreme Court of Victoria here.

If you are unsuccessful after these searches, here are some additional searches you may want to do:

1. Contact the solicitors in the areas around where they lived. If the person made a Will, it is possible they engaged a local solicitor to prepare it.
2. Contact trustee companies, such as State Trustees, to see if they are holding a Will.
3. The Law Institute Journal, published by the Law Institute of Victoria, carries Lost Will advertisements. Most solicitors are subscribers to the Journal and so it may be worthwhile placing an advertisement in that Journal if you believe they might have had a Will prepared in Victoria.

I only have a copy of a Will but where is the original?

We often find that people have a copy of a person's Will but not the original. It is necessary to locate the original Will, if at all possible.

When you only have a copy of a Will, start by contacting the solicitor who prepared the Will. If the solicitor is no longer in business, then you will need to determine which firm took over the safe custody documents of that solicitor. The Law Institute of Victoria maintains records that should assist. We can make enquiries on your behalf and, if necessary, engage the Law Institute to conduct a search of their records.

The solicitor should have records of what they did with the Will. If they are not holding the Will, they should be able to advise to whom it was released. It is a matter of following the chain to discover who is currently in possession of the Will.

Probating a copy of a Will

If you are still unable to locate the original Will, then you may be able to obtain a Grant of Probate with a copy of the Will.

Before issuing a Grant of Probate of a copy Will, the Supreme Court will require an explanation of what happened to the original Will. If the original Will was last in the possession of the deceased, there is a presumption that, if the Will cannot be found, then it must have been destroyed. This presumption is rebuttable but you will need to provide evidence that the Will was not destroyed. What evidence would be appropriate will depend on the circumstances but it could include evidence that they spoke of their Will as if it were still in effect.

If the Will is lost because a person other than the Will Maker (such as a solicitor or a bank) has lost it, then it should be possible to obtain a Grant of Probate of the copy Will. You will need evidence from the person who last held the Will, explaining they have lost it.

Still no Will?

If you have been unable to locate the original Will or a copy of the Will but have evidence of what the Will contained, you may be able to obtain a Grant of Probate or Letters of Administration, based on this secondary evidence.

If this is not possible, the only option left will be to apply for Letters of Administration. The Supreme Court will grant Letters of Administration to a suitable applicant (the next of kin or another family member), who then has the responsibility of administering the estate.

Normally, if a person dies without a Will, their estate will be distributed in accordance with a priority listing of relatives who are entitled to receive a share, as set out in the Administration and Probate Act 1958. However, prudence must be exercised where it is believed that there is an original Will in existence. You should always seek legal advice in these situations. You do not want to distribute an estate, only to find out later that the Will Maker required their estate to be distributed in a different manner. In these cases, it will be appropriate to seek the guidance of the Court.

How can Sharrock Pitman Legal help me?

If you require assistance with a deceased person's estate, please feel free to contact our team. We can assist with locating a lost Will and obtaining a Grant of Probate or Letters of Administration. Call our Wills and Estates team on 1300 205 506 complete the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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