Probate Problems – Don’t remove those staples!

KEY TAKE OUTS

• The Supreme Court of New South Wales maintains a high level of scrutiny when considering an application for probate.
• Any holes, marks or damage to the original Will can lead to the Court issuing a requisition.
• You can reduce the likelihood of a requisition in a probate application by safely storing and preserving the Will in its original state and condition.

When someone passes away and leaves a Will, in most cases, the executor will need to apply to the Supreme Court of New South Wales to obtain a Grant of Probate.
Probate is the legal process through which the Court validates or legally endorses the Will and confirms that the person or persons named as the executors of the Will are legally authorised to administer the estate.
The Court requires the original Will be deposited as part of the probate application process. The Court will then carefully inspect the Will to ensure that it has not been tampered with, damaged or altered in any way that may contradict the true wishes of the deceased person who made the Will.

What if the Court finds evidence that the Will has been marked, damaged or tampered with?

If the Court finds a potential issue with a Probate application, it will issue a notice to the person or organisation that submitted the application called a ‘Requisition’. This is a request for an explanation or for more information or documentation regarding the application.

Let’s consider a situation where someone has passed away, and the executor of their Will begins the process of applying for probate. The executor may take the original Will and makes several copies of it for their records or to give to beneficiaries or asset holders. As part of that task, the executor may have removed the staple or binding to put the document through a copier and then re-stapled it back together. Sometimes, the document may have got caught in the copier and become torn. The original Will is then submitted to the Court as part of the application.

In almost all cases, the Court will notice the small holes in the Will and issue a requisition asking for an explanation for the holes. This can cause extensive delays and stress for all parties involved. The same is likely to happen for original Wills that have smudges or markings, missing or damaged pages, signatures with different coloured pens, to name a few.

The reason that these marks or damage to the original Will require explanation is that they may indicate to the Court that another document (such as a Codicil, which is a supplementary document that amends a Will) could at one time have been attached to the original Will and has become detached (whether accidentally or intentionally).

It is important to understand that the Court does not do this to make the process more difficult; it is a hugely important role that protects the integrity and true wishes of the Will maker and also minimises the likelihood of a fraudulent application.

How can the holes, marks or damage be explained to the Court?

The Court requires an explanation by way of an affidavit which explains the condition of the original Will, when and where it was stored or located and how the holes, marks or damage came to be made.

The explanation will need to trace the custody of the original Will and will often require more than one affidavit be provided by all the persons who have knowledge of these matters. It becomes more difficult when the holes, marks or damage was caused by the will-maker themselves prior to their death, and they are now unable to give any evidence.

In some cases, the Court will also require evidence that the deceased did not intend to revoke their Will and that there has been no material change to their circumstances that would imply they intended to change their Will.

This process unfortunately adds an additional cost and time delay to what may otherwise have been a straightforward probate application.

How can we minimise the likelihood of a requisition?

You should store your original Will in a cool and dry place and inside of a plastic covering. If you have stapled or bound your Will in any way, the staple or binding should never be removed.

Ensure that great care is taken when making copies of the original Will and photocopy each page individually if it is bound with a staple or any other type of binding.

When someone makes a Will with a lawyer, the lawyer will usually offer a free service to safely store the original Will in an appropriate fireproof safe. Storing your will with the law firm will make it much less likely that the document will be marked, damaged or destroyed.

CONCLUSION

Coutts Lawyers and Conveyancers have dedicated estate lawyers who can provide advice or assistance in relation to an original Will with holes, marks or tears, and have experience in the process of obtaining a Grant of Probate on the original Will.