What happens when a will is lost

Even the most prepared among us can come a cropper when valuable legal documents go missing. YourLifeChoices member Ellen has misplaced the family wills just when she needs them most. What can she do? We asked Slater and Gordon Lawyers.

Q. Ellen

Many years ago my husband and I made our wills, our enduring power of attorney and prepaid our funeral arrangements. All papers were kept in the safe in our home. My husband is now in the final stage of his life in a nursing home. I recently had occasion to check the contents of the packet where these papers were kept and found the wills for both my husband and I are missing. Everything else, including our passports, was still there. The house, car and bank accounts are in joint names. Our wills left everything to the surviving partner. What is my position if I cannot produce my husband’s will? Should I now make another will leaving all to be sold and divided between my three adult children? 

A. The obvious first step would be to consider where else the wills could be or whether there is another copy in existence. You may want to undertake a thorough search of your house to make sure they weren’t misplaced. If you still can’t find them, then check whether your lawyer, who prepared the wills, has the original documents.

If you are convinced that the wills are irretrievable, all is not lost. Because your house, car and bank accounts are in joint names, even without a will in place, sole ownership of these assets will pass to the surviving partner.

It is recommended nonetheless that you both have new wills drawn up – you can’t assume that your husband will die first. A will enables the surviving partner to deal with any assets that are not jointly owned. In addition, by having new wills in place you can be assured that when both you and your husband die, your assets will be distributed to your three children according to your wishes.

The question here is whether your husband has mental capacity to complete his will. You mentioned that he is in the final stage of his life in a nursing home. If he does have mental capacity, then he should complete another will leaving you as the surviving partner.

If your husband doesn’t have mental capacity, he won’t be able to complete a new will. If your solicitor has a copy of his will, you can apply to the court to have that will validated. This will be more complex than applying for probate but is commonly done.

To avoid losing your wills in future, it is important to keep an original copy of your wills in safe custody with your lawyer or a bank. You can then keep the certified copy in your possession with a note attached detailing where the original is stored. You should also provide another certified copy to the executor of your estate.

Depending on the complexity of your situation, you may be able to complete your wills online. It is a quick, cost-effective and easy-to-use option. If, however, your individual circumstances require advice, or something more than a standard will, the system will identify the issues involved.  You can request a written summary of your estate planning assessment so that you are aware and understand the complexities of your situation and then seek appropriate advice. 

For further information, you can contact Slater & Gordon at 1800 555 777 or visit www.slatergordon.com.au.

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