What happens when an executor cannot find a will?

Date: May 24, 2016
Document Type: Article

When making a Will, the testator as a rule nominates an executor, or executors, of the Will to manage the testator’s estate upon his/her death.

The executors of a deceased estate have a number of critical duties, including collecting the assets of the estate, paying the estate’s debts and, as a final stage, distributing the estate to the beneficiaries under the Will.

In the great majority of cases, the executors will need to obtain a grant of probate, to be able to manage the estate of the deceased person. The grant of probate is issued by the Supreme Court of the state, to authorise the executors to deal with the estate. To obtain a grant of probate, the executors should file with the Registrar of the Supreme Court a probate application, including the original Will.

If an original Will cannot be found, the executors may still be able to obtain a grant of probate by filing a copy of the Will, together with their Affidavit, explaining how they have obtained the copy and what actions they have taken to search for the original Will. To satisfy this requirement, the executors must, as a bare minimum, make the following searches:

  1. the deceased's personal papers and effects
  2. the solicitors that the deceased may have used
  3. the banks the deceased has used and
  4. the NSW Trustee and Guardian.

If, as a result of the searches, there is reason to believe that the original Will was last in the possession of the deceased, then the Court will presume that the deceased has destroyed the Will with the intention of revoking it. If the executors possess evidence to the contrary, they need to support their application for probate with an affidavit, to show to the Court that the deceased had no intention to revoke the Will and/or that there have been no substantial changes to the deceased’s circumstances since the making of the Will to warrant any changes to the Will.

In addition to such evidence, the affidavit of the executor will need to contain information as to who would be entitled to receive the distributions of the estate if there were no Will (‘under intestacy’).  If the copy of the Will does not cover some of the persons who would be entitled under intestacy, then those persons should be served with a notice of the intention to apply for the probate on the basis of the available copy Will and the evidence of such notice should be included with the executors’ affidavit filed with the application. It is also desirable if the executors could obtain consent of those persons to apply for the grant of probate under the copy Will and include evidence of their consent in the executors’ affidavit.

Lastly, in their affidavit, the executors should give an undertaking that they will produce the original Will, if and when it is found.

If you are an executor of a deceased estate and you find yourself in a situation where there is no original Will or you have any queries with respect to the Will, it is advisable to see a solicitor, to obtain detailed advice as to the appropriate course of action. The experts at Craddock Murray Neumann Lawyers can help you with this.

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