Searching For The Will & Understanding It
By Nicholas Marouchak
06 March 2021 - 9 min read
You need to check whether your loved one had a Will or not.
Even if are certain, there is no Will, you should still conduct reasonable searches – just to make sure.
A Will impacts on what happens next, such as who’s responsible for undertaking the administrative work, and how the deceased person’s assets are divided.
What is a Will?
A Will is a legal document signed by a deceased person which sets out:
• who the executor is • who are the beneficiaries (eg. the people or organisations receiving an inheritance under the Will) • other optional information such as guardian for children under 18 and funeral wishes.
A Will may have the words “Last Will and Testament” or something similar.
What is an executor?
An executor is a person appointed under a valid Will to be responsible for: • finalising a deceased person’s affairs; and • distributing the assets to the beneficiaries named in the Will.
There can be one or more executors nominated.
There can also be back-up executors(s) nominated in case the first-mentioned executor(s) can’t act.
An executor has to be over 18 years of age at the time of death to be lawfully allowed to act.
An executor is a separate position to a beneficiary, but a beneficiary and executor can be the same person.
Why is a Will important?
If a Will exist, the executor(s) nominated in the Will are generally responsible for finalising your loved one’s affairs. They are generally in-charge.
An executor does not need to act if they don’t want to.
A Will also determines how the assets are divided.
Who is in-charge if there is no Will?
If there is no Will, the closest next of kin will be responsible for finalising the deceased person’s affairs.
Can others help?
Yes, other family and friends may assist the executor(s) or closest next of kin.
What is a Codicil?
A Will can also be amended by creating a document called a “codicil” (instead of creating a new Will).
A Codicil will have the words “codicil” on it and it will also reference the original Will.
Not everyone makes a codicil, so it’s not something you should expect to find.
The codicil will likely be kept near the Will, if there is one.
If there is a codicil, simply interpret the Will with the amendments in the Codicil.
You need the original
You should obtain the original version of the Will, not a copy.
If you only have a copy, then you should conduct searches to find the original.
You may need legal assistance if you only have a copy of the Will.
Making a copy of the Will
It is best practice to take a copy of the Will, without disturbing the Will in any way.
This means, you must not remove staples or clips but leave the Will in its original condition.
It can be easier to take a photo of the Will, than trying to photocopy it.
Keep the original in a safe place as you may need it later on.
What makes a Will valid?
A Will is valid if it is signed by the deceased person and witnessed by 2 witnesses over the age of 18.
If a Will does not comply with these formal requirements, it may be deemed as an informal Will (more on that below).
Remember, a Will can also be amended by a document created after the Will called a Codicil A Codicil (if there is one) and the Will are read together to incorporate the amendments in the Codicil
Problems With The Executor
An executor does not need to act if they do not want to, or if they can’t for some reason.
Common ways an executor can’t act are if they have passed away, have a medical condition or cannot be located.
An executor can also voluntarily step-down by signing a renunciation. This is a special document which legally confirms the executor does not wish to act.
If the Will has backup executors, then they will take over.
If There Are No Executors
If a Will fails to nominate an executor or there are no executors able to act, the Will is still valid.
Generally, one or two of the beneficiaries in the Will can take over the responsibility of acting as the executor.
If a Grant of Probate is required, an application for a Grant of Letters of Administration with Will Annexed is applied for. We discussed this more in the further section.
How a Will is revoked?
There are laws in place, which differ in each State, which stipulate how a Will can be revoked.
If a Will has been revoked, the Will is not valid in any way.
These are the ways a Will can be revoked (e.g not valid anymore):
- By creating another Will. Generally, each new Will automatically revokes each older Will. Therefore, the latest Will is usually the one that is valid.
- A Will can be revoked by the creator ripping it up or showing some sort of intention that they wished for the Will to be destroyed. This has to be done during the person’s lifetime.
- Marriage in most States automatically revokes Wills created before marriage, unless the Will was specifically made in contemplation of the marriage.
- Divorce usually either revokes the Will in its entirety or revokes the parts of the Will which apply to the person’s former spouse.
- In some States, formal registration or cancellation of a de facto relationship or civil union can have the effect of revoking a Will.
Contact our lawyers if in doubt whether your loved one’s Will is binding or not.
What is an Informal Will?
If you have a document that appears to be a Will, but it does not comply with the formal requirements of a Will (such as being signed and witnessed by 2 adults) that document may still be admitted as an ‘informal Will’.
Each State in Australia has various rules which allows the Court to approve a document as an informal Will, despite the strict requirements of a Will not being met.
After that approval process, the informal Will has the same effect as if it was validly and properly created Will.
Usually for a document to be approved as informal Will, the document will need:
- To show an intention for that document to operate as their final Will.
- Generally, the person has to see the document or adopt the document as their Will.
- The person has to treat that document as being final as opposed to a work-in-progress.
The Estates Plus legal team will be able to assist you to determine whether the court is likely to approve a document as an informal Will or not.
Possible Problems With the Will
Lost Wills
If your loved one created a Will, and there is evidence to support that (eg they told someone they created a Will during their lifetime), then the Will may be lost.
There are usually further steps that need to be taken to attempt to locate the lost Will.
Damaged Will
Take note if the Will is damaged in any way. Depending on the amount of damage, the person may have attempted to revoke the Will by trying to destroy it.
Paperclips marks
Check if the Will has any paperclips, pins, bulldog clips, staple holes or other marks. This may suggest that extra pages were attached to the Will and may be missing or removed.
Disability or language issues
If the maker of the Will was blind, deaf, illiterate or could not speak or read English, then a special requirement is needed for the Will to be valid, because the Will may not have been understood or adopted by the maker.
Offensive words
If a Will contain scandalous or offensive words, there might be additional steps required. There might be further precautions that should be taken.
Mental capacity concerns
The maker has to have full mental capacity to create a Will.
If there are any concerns that they did not have the ability of understanding a Will, there is a process where the court can examine the circumstances of how the Will came into being, and if appropriate, declare the Will invalid.
Suspicious circumstances
If a Will is created in suspicious circumstances, the Court can examine the circumstances of how the Will came into being to determine whether it contains the true wishes of the maker.
Examples of suspicious circumstances include duress or inappropriate influence to force someone to make a Will.
Entire estate
It is a good idea to also check that the Will covers the deceased person’s entire estate.
Sometimes a Will only covers some of the property owned, but does not account for the others.
If the Will only covers some of the estate, that means the property not covered needs to be distributed pursuant to the ‘rules of intestacy’.
Contact us if you have any concerns about a Will.
Searching for a Will
You should conduct these searches even if you believe your loved one did not create a Will or if you think you have the latest Will.
Each time you conduct theses searches, make a note in the notes section of this app because you might need to tell the Court about what searches you did, and when (discussed in later steps)
Personal papers
Search places where your loved one may have kept important documents, such as a filing cabinet, desk or a safe
Australian Wills Registry
The Australian Registry is an online database that allows people to register their Wills. Check with them.
Public Trustee
Each State in Australia has a Public Trustee, which is a semi-government organisation that deals with deceased estates.
You should check with the Public Trustee in your State to see if the deceased person made a Will with them.
Private Trustee
You should contact private trustee companies to see if they have a Will, which include:
Banks
Sometimes people leave their Will in a safety deposit box at their bank. Find out which banks the deceased person used, and call them to see if they have a Will.
Lawyers
If you know that your loved one saw a lawyer for the purposes of a Will, or any other reason - call the lawyers and ask if they have the Will or a copy of it.
Friends and family
Ask any close friends or family members which you think the deceased person might have told or given information about any Will created.
