If you have recently lost a loved one and now wish to take first steps to start the Estate Administration process, then you are in the right place.
If you have found the original will you might have questions on what to do next. First be sure that you have also searched for any informal wills to be certain you know your loved one’s last wishes. Then read this blog on how to check over the original will (and why that is important).
If you have found a copy of the will, but the original will has been lost – this blog will explain what to do.
How to scrutinise the will
Scrutinising the will just means having a careful look at it to make sure there is nothing that might cause problems down the track.
When dealing with the original will you have to be quite careful to leave it in its original condition – just as you found it. Don’t take out the staples to make a copy, don’t clip anything to it, don’t write on it, and if it has a note stuck or clipped to it, leave it that way.
Here are the things that are important to look for:
- Has the will been signed (or marked) by the willmaker, or someone else at the direction of the willmaker?
- Has the will been witnessed by two witnesses? Check that the witnesses are not also named as beneficiaries of the will. While this won’t affect the validity of the will it could disqualify those witnesses as beneficiaries (unless all of the other beneficiaries agree otherwise).
- Is there an attestation clause (the ‘signing’ clause that confirms that the will was signed in the presence of two witnesses) at the end of the will? Although this clause is not strictly required for a will to be valid, a will without an attestation clause can require an additional sworn statement from at least one of the witnesses to confirm that the will was properly signed.
- Check that the will is not torn or damaged. If it is, this might indicate that the deceased was trying to destroy it.
- Check for any handwritten changes or deletions, and check whether or not those changes have been initialled by the willmaker in the presence of two witnesses. Check they are the same witnesses that signed the will.
- Are there any pin holes, staple holes or paper clip marks on the will? If so, these will need to be explained, because they infer that some other document that might have revoked or changed the will was attached.
- Check the date the will was made. Consider whether the will has been revoked by a later marriage (unless the will was made ‘in contemplation of marriage’) or by divorce (unless there was a contrary intention in the will).
What if the original will is lost?
If you have found a copy of the signed will but you can’t find the original – you can make an application for Letters of Administration with a copy of the will – but you will need the assistance of a specialist estates lawyer to do that. You will need help to put together evidence of the searches you have made to locate the original will and to convince a judge that the willmaker didn’t destroy the original will intentionally.
If a will, known to exist, is missing, and the evidence is clear that it was not destroyed or revoked, then it may also be possible to prove the contents of a missing will by providing additional evidence to the court. For example, you might be able to get evidence from the file of the solicitor who prepared the will, or from the recollection of a credible witness who knew its terms. Again you will need specialist help to do this.
These types of applications will be easier to make if there is consent from all affected parties. The “affected parties” in this context will be the beneficiaries named in any prior valid will, or the beneficiaries who might otherwise take the estate on intestacy (where a person dies without a will). Whether these parties consent or not, they will need to be served with the application so that they can have their say.
If you need help with this type of application – click here to book your free 15-minute consultation with us for guidance on next steps.
If you have looked over the will careful and not found any problems with it that would require explanation, click here to learn more about whether or not you need to apply for probate. If, after using the above will check checklist, you have discovered issues that might cause a problem down the track – click here to book your free 15-minute consultation with us.
We hope this blog has given you the information you are looking for. We are here to help you navigate next steps in a calm and compassionate way. If you prefer to chat to us directly about anything that is worrying you, just give us a call or click here to book your complimentary 15 minute discussion with us.