Keeping your Will Safe

KEY TAKE-OUTS:

• How original copies of Wills are stored.
• How you can locate a Will, whether that’s for you or someone else.
• What happens in the event that the original Will cannot be found or accessed.

Where do I keep my original Will?

A common question that Estate Planning Lawyers are asked is “what happens to my original Will once I have signed it?”
Unlike some other countries, Australia does not have an official public registry of Wills.
It is up to the Testator (Will-maker) to determine where they would like the original Will to be stored. Some common places that people keep their Wills are:

1. With the Solicitor/law firm that prepared the will in their safe custody;
2. At home in a safe place with other important life records; or
3. At their bank.

The New South Wales Trustee and Guardian also offer a secure storage facility for your Will and other estate planning documents.
We advise you to store your Will in a location that is safe from flood, fire or theft and accessible to your executor once you have passed.
Once you have decided where to store your Will, you will need to advise your executor(s) of the location of the Will as the original is required to administer the estate and apply for Grant of Probate with the Supreme Court of NSW (if necessary).

Locating a Will

If the Executor is unaware of where the Will is kept, they will need to take some complete some necessary searches:

1. Your personal possessions;
2. Your bank’s safe custody records;
3. Solicitors in the local areas where you worked or live to search their safe custody records; and
4. New South Wales Trustee and Guardian Will Safe records.

What happens if the original Will cannot be found or accessed?

If the Executor has undertaken all the necessary searches, they may attempt to prove a copy of the Will if one is available. Where the original Will was last in the possession of the deceased testator and the Executor is unable to locate it, there is a legal presumption that the testator destroyed the original Will with the intention of revoking it.

To prove a copy of the Will, the Executor will need to rebut the presumption by providing sufficient evidence to show that the Testator did not intend for the Will to be revoked, however this burden of proof is extremely high. This can also cause significant stress, delay and costs to the administration of the estate.

In the case that the copy of the Will cannot be proved, then the estate will be distributed according to the terms of a previous will, or if none exists, according to the rules of intestacy which is a statutory hierarchy of beneficiaries.

It is therefore crucial that your original Will is stored in a safe place that can be easily accessed by your Executor when necessary.

How Coutts can help

At Coutts, we offer complimentary safe custody storage of original documents for our estate planning clients.

If you do not have a Will, your Will is not up to date or you are unsure of where the original of your previous Will is, we encourage you to reach out to our estate planning team who can assist.

Schedule an Appointment Now

ABOUT SHANNAN WRIGHT:

Shannan joined the Coutts team in July 2022, working as a Lawyer within our Family Law and Wills & Estates teams, across our Narellan and Campbelltown offices.

Shannan completed a Bachelor of Laws/Bachelor of Psychological Science at the University of Wollongong.