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Will and Probate Help: Things to know

This article aims to briefly examine the importance of having a valid will; what happens when a person dies without having a valid will, and what to do when an original will of a person who has passed away, cannot be found, or the will is lost and there is only a copy of it […]

Will and Probate Help: Things to know

Will and Probate Help: Things to know

This article aims to briefly examine the importance of having a valid will; what happens when a person dies without having a valid will, and what to do when an original will of a person who has passed away, cannot be found, or the will is lost and there is only a copy of it available. 

Why it matters to have a valid will? 

A valid will allows you to decide how your property, should be dealt with upon your passing away. It also defines who is to be responsible for managing your property (provided that it belongs only to you). The person who takes on this task is called the Executor.

What happens when a person dies without having a valid will? 

This is a scenario that should be avoided. When a person dies without having a valid will, the person is said to have died intestate. This is currently dealt with in accordance with Part 3 of the Succession Act 1981 (the Act). In such a scenario, the closest relatives such as a spouse, for example, takes on the role of administering the deceased’s estate. However, he/she cannot do so without first receiving a grant of letters of administration on intestacy from the Supreme Court.

What happens when the person died “intestate” and does not have any next of kin? 

If the person who dies does not have any close relatives such as his/her spouse or de facto partner, children, or grandchildren then the role of executor (and the proceeds of the estate) may go to the deceased’s parents, brothers, sisters, nephews, and nieces, for example. Therefore, it is important that you have a will so you can decide to who you want your assets to go.

Who keeps a copy of my original last will? 

It is usually the solicitors who prepared your last will and it should be placed in their safe custody. It is important that you let your next of kin know where the original will is kept and consider if you are content to provide them with a copy of your will certified by the solicitor who prepared it. 

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Protection points to remember about safe keeping of an original will

If you happen to hold a copy of your original will, ensure and remember that an original copy of the will should never be stapled, pinned or paper clipped. Seek advice from a solicitor if you consider that an original will has been damaged. When you apply for a grant of probate, the Court, among other things, will look into the original will to ensure that the will in all respects is in the same state, plight, and condition as when it was prepared/found.

Should I update my last will from time to time?

Yes. This is because over time you may acquire new assets or may decide to add or remove certain beneficiaries to, or from the will. Therefore, it is prudent that you review the terms of your will regularly and update your will when your financial and other circumstances or your wishes change.

What if I cannot find the original will and only have a copy of it? 

In short, if you cannot find the original of the will, or the will has been misplaced, the Court must be satisfied of all of the following matters:

  • There was actually a will;
  • That will revoked all previous wills;
  • The applicant overcomes the presumption that, if the original will cannot be produced to the Court, it was destroyed by the testator with the intention of revoking it;
  • There is evidence of the terms of the will; and
  • The will was duly executed.

In Frizzo v Frizzo [2011] QSC 107, Judge Applegarth followed the New South Wales decision of Cahill v Rhodes [2002] NSWSC 561 at [55] and held that the above 5 matters must be established for the admission to probate of a copy of the will.

Aylward Game Solicitors have recently been successful in an application to have a copy of a will accepted by the Court, and a grant of probate given by the Court when the original will had been lost.

For advice or assistance with all will, estate administration, and probate, contact the Will and Probate Team at Aylward Game Solicitors today on 1800 217 217
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